Judge William A. Crowfoot, Case Number: 23AHCV01734, Date: 2024-01-24 Tentative Ruling

Judge: William A. Crowfoot, Case: 23AHCV01734, Date: 2024-01-24 Tentative Ruling

On July 28, 2023, plaintiff Venessa Garcia (“Plaintiff”) filed this action against defendant SR Hospitality Group LLC (“Defendant”). Plaintiff alleges that on April 6, 2023, she stayed at a franchised Motel 6 owned and operated by Defendant. (Compl., ¶ 16.) On the morning of April 7, 2023, she awoke at 5 a.m. to excruciating pain on her left foot and bedbug bites. (Compl.,¶ 18.) She alleges that she informed “Defendants’ agents” the front desk that she had been bitten by a bedbug and requested a new room but the agents laughed in her face and stated, “Sorry, we can’t help you.” (Compl., ¶ 20.) Plaintiff was not given a new room or any assistance. (Compl., ¶ 20.) Plaintiff sought medical attention on April 9, 2023, and saw multiple medical providers. (Compl., ¶¶ 22-25.) She alleges she experienced severe pain and swelling in her foot for almost an entire month and that her foot has not fully healed. (Compl., ¶ 26.)

Plaintiff asserts causes of action for: (1) violation of Business & Professions Code § 17200, et seq. (“UCL”), (2) negligence, (3) intentional infliction of emotional distress (“IIED”), (4) negligent infliction of emotional distress (“NIED”), (5) negligence per se, (6) breach of contract, (7) premises liability, (8) private nuisance, (9) violation of Civil Code § 1750, et seq. (“Consumer Legal Remedies Act” or “CLRA”).

On October 26, 2023, Defendant filed this demurrer and motion to strike. Defendant demurs to Plaintiff’s First, Third, Fourth, Sixth, Eighth, and Ninth Causes of Action. Defendant moves to strike Plaintiff’s claims for restitution, punitive damages, and attorneys’ fees.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).) A demurrer may also be brought if the pleading is uncertain, ambiguous or unintelligible. (Id., subd. (f).) Further, in an action founded upon contract, a demurrer may be brought on the ground that it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct. (Id., subd. (g).)

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.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)

Defendant argues that Plaintiff’s Sixth Cause of Action for breach of contract is insufficient, ambiguous, and not properly pleaded because she fails to state whether the contract is written, oral, or implied by conduct, nor does Plaintiff attach any purported contract or identify which contractual provisions are at issue.

In opposition, Plaintiff argues that she has pleaded that the contract was implied by nature. Plaintiff refers to the use of the word “implied” in paragraph 42 to show that the contract was “implied by nature”, but this word was used to describe an implied duty and a description of the hotel room, not to allege that the contract’s formation was implied. (Opp., p. 6.) She then cites to a case that holds that, in an action based upon a written contract, it is sufficient to plead the legal effect of the contract rather than its precise language, and that she has sufficiently identified the key terms of the contract which was to rent a habitable hotel room. (Opp., pp. 6-7, referring to Compl., ¶¶ 42, 84-88.) By describing the contract as implied while relying on statement of law applicable to written contracts, Plaintiff proves Defendant’s point that her contract claim is ambiguous.

Accordingly, Defendant’s demurrer to the Sixth Cause of Action is SUSTAINED with leave to amend.

Defendant argues that Plaintiff’s IIED claim fails because she does not state facts alleging extreme or severe conduct. (Demurrer, p. 5.) Defendant argues that the “simple existence of a bedbug problem, without any specific facts that show some intent to cause severe harm, or showing substantial and pervasive conduct, does not rise to the level of severe, extreme and outrageous conduct needed to plead IIED.” (Demurrer, p. 6.)

“Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209.) In order for conduct to be outrageous, there must be (1) a specific intent to injure, or (2) a reckless disregard of the substantial certainty of a severe emotional injury. (Id. at p. 210 [“Absent an intent to injure, such inaction is not the kind of ‘extreme and outrageous conduct’ that gives rise to liability under the ‘intentional infliction of emotional distress’ tort”]; Christensen v. Superior Court (1991) 54 Cal.3d 868, 903 [“substantially certain to cause extreme emotional distress”].) The conduct must be “directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” (Christensen, supra, 54 Cal.3d at p. 903.) “The requirement that the defendant's conduct be directed primarily at the plaintiff is a factor which distinguishes intentional infliction of emotional distress from the negligent infliction of such injury.” (Id., at p. 904.)

Here, Plaintiff alleges that Defendant’s “outrageous conduct” and acts of recklessness consist of their failure to “comply with the cleanliness, sanitation, and safety laws required of them” which led to the bedbug infestation. (Compl., ¶¶ 58-60.) Plaintiff alleges that Defendant “knew, and/or reasonably should have known about the bedbugs, yet continued their pattern and practice of neglecting their cleaning and managerial responsibilities to maximize profits at the expense of the health and well-being of patrons such as Plaintiff.” (Compl., ¶ 62.) However, Plaintiff fails to allege a specific intent to injure her, nor does she plead facts supporting that Defendant exhibited “reckless disregard of the substantial certainty of a severe emotional injury” to her. (Compl., ¶ 61.) Plaintiff emphasizes in her opposition brief that Defendant’s agents allegedly laughed at her when she requested a new room, but this incident occurred after Plaintiff already sustained the bedbug bites. (Opp., p. 5.) Additionally, although Plaintiff refers to various trial court orders to argue that Defendant’s deliberate failure to eradicate a bedbug infestation constitutes outrageous conduct, these trial court decisions "are not precedents binding on other courts under the principle of stare decisis." (See Harrott v. County of Kings (2001) 25 Cal.4th 1138, 1148, (citation omitted).

Accordingly, Defendant’s demurrer to the Third Cause of Action for IIED is SUSTAINED without leave to amend.

Negligent infliction of emotional distress (NIED) is not a separate tort but is a species of negligence. (Marlene F. v. Affiliated Psychiatric Med. Clinic, Inc. (1989) 48 Cal.3d 583, 588.) It simply allows certain persons to recover damages for emotional distress on a negligence cause of action even though they were not otherwise injured or harmed.¿ (See¿Molien v. Kaiser Foundation Hospitals¿(1980) 27 Cal.3d 916, 928.) Recovery for emotional distress damages suffered by “direct victim” plaintiffs has been recognized only in the following situations: (1) near-miss accidents where the plaintiff was personally at risk, (2) claims against health care providers, (3) claims against environmental polluters, and (4) claims against mortuaries that mishandle human remains. (Cal. Prac. Guide Civ. Pro. Trial Claims and Def. Ch. 2(V)-B.) Here, none of those circumstances are present.

Accordingly, the NIED claim is duplicative of Plaintiff’s Second Cause of Action for Negligence and the demurrer is SUSTAINED without leave to amend.

Instead, Plaintiff may amend the second cause of action to add emotional distress as a category of damages. (See Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 981 [damages for emotional distress are available as “parasitic” damages].)

“Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property . . . is a nuisance.” (Code Civ. Proc., § 3479.) “The essence of a private nuisance is an interference with the use and enjoyment of land.” (Friends of H Street v. City of Sacramento (1993) 20 Cal.App.4th 152, 160.) Thus, to allege a cause of action for private nuisance, the plaintiff must allege injury specific to the use and enjoyment of his land. (See Adams v. MHC Colony Park Limited Partnership (2014) 224 Cal.App.4th 601, 610.)

Defendant argues that Plaintiff cannot state a claim for private nuisance because she does not have a possessory interest in the motel room. (People v. Minervini (1971) 20 Cal.App.3d 832, 840 [customer of motel has no interest in the realty and is not a tenant].) Since a private nuisance necessarily interferes with the use and enjoyment of plaintiff's private property, Plaintiff cannot state a claim for private nuisance. (Friends of H Street v. City of Sacramento (1993) 20 Cal.App.4th 152, 159-162.)

In opposition, Plaintiff only relies on trial court orders to claim that her hotel reservation gives her a possessory interest. As stated above, these orders are not binding precedent. (See Harrott, supra, 25 Cal.4th at p. 1148.) Instead, published case law distinguishes guests or patrons of an inn, hotel, or similar lodging place from a tenant as one who has no interest in real estate. (See, e.g., Fox v. Windemere Hotel Apartment Co. (1916) 30 Cal.App. 162, 164-165.)

Accordingly, the demurrer to the Eighth Cause of Action for Private Nuisance is SUSTAINED without leave to amend.

Defendant argues Plaintiff has not identified any “unlawful, unfair or fraudulent business act or practice” to support her UCL claim and mainly discusses whether Plaintiff has identified an “unfair practice.” Defendant’s reliance on Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 928, is inapposite because the plaintiff in Stoiber sought “only injunctive relief on the basis of ‘unfair business practices.” Here, Plaintiff alleges that Defendant violated California Health and Safety Code section 17920.3 and Civil Code section 1954.602 because it failed to address the bedbug infestation after being notified of its existence. (Opp., p. 3; Compl., ¶ 45.)

The Court acknowledges that Plaintiff merely claims that there is a possibility that Defendant failed to change the sheets and violated California Code of Regulations, Chapter 25, Section 40 (even though the correct citation is to California Code of Regulations, Title 25, Division 1, Chapter 1, subchapter 1, section 40). (Compl., ¶ 46.) The Court also notes that Plaintiff fails to state a claim under the “fraud” prong by failing to allege that she relied on any misrepresentation by Defendant. However, Plaintiff’s allegations under the “unlawful” prong of the UCL are adequate. Accordingly, the demurrer to the entire cause of action is OVERRULED.

Last, Defendant argues that Plaintiff’s claim under the CLRA fails because Plaintiff did not give Defendant proper notice of the alleged violation. The CLRA requires a plaintiff to notify the defendant in writing of the alleged violation 30 days before filing this action. (Civil Code, § 1782, subd. (a.) Here, Plaintiff does not allege that she gave notice as required by the CLRA. Instead, Plaintiff argues that notice is not required to be given if she is seeking injunctive relief. This argument is unpersuasive, however, because Plaintiff does not seek injunctive relief in her Complaint. Furthermore, since the action has already been commenced, Plaintiff cannot “cure” this failure to give notice. Accordingly, the demurrer to the Ninth Cause of Action is SUSTAINED without leave to amend.

As an initial matter, the motion to strike is moot as to paragraphs 60, 61, 63, and 117 due to the Court’s ruling on Defendant’s demurrer. The remaining allegations to be struck from the Complaint may be divided into the following: Plaintiff’s allegations in her UCL claim, Plaintiff’s allegations related to her prayer for punitive damages, and Plaintiff’s allegations related to her request for attorney’s fees.

Defendant moves to strike Plaintiff’s requests for restitution in paragraph 115 of the Complaint and paragraph 4 of the prayer for relief. These requests for restitution are connected with her claim based on the “fraudulent” prong of the UCL. As discussed above, Plaintiff fails to state a claim under the “fraudulent” prong of the UCL because Plaintiff fails to allege that she relied on any alleged misrepresentation. Accordingly, the motion to strike these allegations is GRANTED with 20 days’ leave to amend.

Defendant also moves to strike any reference to “California Code of Regulations Chapter 25, Section 40.” As Defendant points out, “Chapter 25, Section 40” of the California Code of Regulations is an incorrect citation. Therefore, the allegations are improper and irrelevant and the motion to strike these references in paragraphs 29, 31, 45, and 91 is GRANTED with 20 days’ leave to amend.

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice. (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.) “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages. (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal. App. 3d 949, 958.) The allegations supporting a request for punitive damages must be alleged with specificity; conclusory allegations without sufficient facts are not enough. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)

Furthermore, an employer shall not be liable for punitive damages based on the acts of an employee, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which damages are awarded, or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation. (Civ. Code, § 3294, subd. (b).)

Here, Plaintiff fails to identify any officer, director, or managing agent of Defendant who: (1) had advance knowledge and conscious disregard of the unfitness of any particular employee, or (2) authorized, ratified, or engaged in any malice, oppression, or fraud.

The motion to strike paragraphs 56, 60, 94, 102 of the Complaint and paragraphs 3 and 6 of the prayer for relief is GRANTED.

The motion to strike paragraph 38, lines 16-17, which states, in relevant part, “… and is undertaken with the intention and effect of Defendants maximizing profits at the Motel 6” is DENIED because this is a factual allegation.”

Defendant’s motion to strike Plaintiff’s prayer for attorneys’ fees based on her CLRA claim (Civil Code section 1780(e)) is moot because its demurrer to Plaintiff’s CLRA is sustained. Plaintiff’s prayer for punitive damages based on Civil Code section 3304 for the breach of the covenant of quiet enjoyment is denied because, as discussed above, she does not hold a real estate interest in the hotel room. Furthermore, Plaintiff cannot recover attorneys’ fees for bringing an action in the public interest pursuant to Code of Civil Procedure 1021.5 because Plaintiff concedes that she is not bringing this action on behalf of the public and there are no facts alleging that there were bed bugs beyond those within her room on the night of the incident.

Defendant’s demurrer is OVERRULED as to the First Cause of Action for Violation of the UCL. The demurrer is SUSTAINED without leave to amend as to the Third, Fourth, Eighth, and Ninth Causes of Action. The demurrer is SUSTAINED with 20 days’ leave to amend as to the Sixth Cause of Action.

The motion to strike is MOOT as to paragraphs 60, 61, 63, and 117 and DENIED with respect to paragraph 38, lines 16-17. The motion to strike Plaintiff’s requests for restitution in paragraph 115 of the Complaint and paragraph 4 of the prayer for relief, as well as the references to “California Code of Regulations Chapter 25, Section 40” in paragraphs 29, 31, 45, and 91 is GRANTED with 20 days’ leave to amend. The remainder of the motion to strike is GRANTED without leave to amend at this time. Plaintiff may file a motion for leave to amend later if discovery yields additional facts which would support a punitive damages award or an award of attorneys’ fees.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.