On 11/24/2020 GAYANE GHARDYAN filed a Personal Injury - Other Personal Injury lawsuit against 14400 WEST FRIAR STREET, LLC. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is EDWARD B. MORETON. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Spring Street Courthouse
Los Angeles, California
EDWARD B. MORETON
14400 WEST FRIAR STREET LLC.
2/24/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE: NON-PI TRANSFER) OF 02/24/2021
2/24/2021: Minute Order - MINUTE ORDER (COURT ORDER RE: NON-PI TRANSFER)
2/16/2021: Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO DEFENDANT'S NOTICE OF DEMURRER
2/16/2021: Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO DEFENDANT'S NOTICE OF MOTION TO STRIKE
2/17/2021: Reply - REPLY REPLY TO OPPOSITION TO MOTION TO STRIKE PORTIONS OF COMPLAINT
2/17/2021: Reply - REPLY REPLY TO OPPOSITION TO DEMURRER TO COMPLAINT
12/28/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR [PI GENERAL ORDER], STANDING ORDER RE PI PROCEDURES AND HEARING DATE
12/28/2020: PI General Order
1/20/2021: Demurrer - with Motion to Strike (CCP 430.10)
1/20/2021: Motion to Strike (not initial pleading)
11/30/2020: Application And Order For Appointment of Guardian Ad Litem - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM FOR ARSEN
12/1/2020: Application And Order For Appointment of Guardian Ad Litem - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM FOR ARMAN
11/24/2020: Civil Case Cover Sheet
11/24/2020: Notice of Case Assignment - Unlimited Civil Case
Docketat 11:16 AM in Department 27, Edward B. Moreton, Presiding; Court OrderRead MoreRead Less
DocketCertificate of Mailing for ((Court Order Re: Non-PI Transfer) of 02/24/2021); Filed by ClerkRead MoreRead Less
DocketMinute Order ( (Court Order Re: Non-PI Transfer)); Filed by ClerkRead MoreRead Less
DocketReply (REPLY TO OPPOSITION TO MOTION TO STRIKE PORTIONS OF COMPLAINT); Filed by 14400 WEST FRIAR STREET, LLC. (Defendant)Read MoreRead Less
DocketReply (REPLY TO OPPOSITION TO DEMURRER TO COMPLAINT); Filed by 14400 WEST FRIAR STREET, LLC. (Defendant)Read MoreRead Less
DocketOpposition (Plaintiff's Opposition to Defendant's Notice of Demurrer); Filed by GAYANE GHARDYAN (Plaintiff)Read MoreRead Less
DocketOpposition (Plaintiff's Opposition to Defendant's Notice of Motion to Strike); Filed by GAYANE GHARDYAN (Plaintiff)Read MoreRead Less
DocketMotion to Strike (not initial pleading) (Portions of Complaint;); Filed by 14400 WEST FRIAR STREET, LLC. (Defendant)Read MoreRead Less
DocketDemurrer - with Motion to Strike (CCP 430.10) (To Complaint;); Filed by 14400 WEST FRIAR STREET, LLC. (Defendant)Read MoreRead Less
DocketPI General Order; Filed by ClerkRead MoreRead Less
DocketCertificate of Mailing for ([PI General Order], Standing Order re PI Procedures and Hearing Date); Filed by ClerkRead MoreRead Less
DocketApplication And Order For Appointment of Guardian Ad Litem (for Arman); Filed by GAYANE GHARDYAN (Plaintiff); ARMAN GASPARYAN (Plaintiff); ARSEN GASPARYAN (Plaintiff)Read MoreRead Less
DocketApplication And Order For Appointment of Guardian Ad Litem (for Arsen); Filed by GAYANE GHARDYAN (Plaintiff); ARMAN GASPARYAN (Plaintiff); ARSEN GASPARYAN (Plaintiff)Read MoreRead Less
DocketCivil Case Cover Sheet; Filed by GAYANE GHARDYAN (Plaintiff); ARMAN GASPARYAN (Plaintiff); ARSEN GASPARYAN (Plaintiff)Read MoreRead Less
DocketComplaint; Filed by GAYANE GHARDYAN (Plaintiff); ARMAN GASPARYAN (Plaintiff); ARSEN GASPARYAN (Plaintiff)Read MoreRead Less
DocketNotice of Case Assignment - Unlimited Civil Case; Filed by ClerkRead MoreRead Less
Case Number: 20STCV45118 Hearing Date: April 7, 2021 Dept: W
GAYANE GHARDYAN, et al. v. 14400 WEST FRIAR STREET, LLC
demurrer with motion to strike
Date of Hearing: April 7, 2021 Trial Date: None set.
Department: W Case No.: 20STCV45118
Moving Party: Defendant 14400 West Friar Street, LLC
Responding Party: Plaintiffs Gayane Ghardyan, individually and as Guardian ad Litem for minors Arman Gasparyan and Arsen Gasparyan
Meet and Confer: Yes. (Wargo Decl. ¶¶3-4.)
This is a habitability case. Plaintiff Gayane Ghardyan, individually and as Guardian ad Litem for minors, Arman Gasparyan and Arsen Gasparyan, seek damages from Defendant 14400 West Friar Street, LLC for its alleged failure to properly maintain, control or repair Plaintiffs’ rented short term-apartment unit.
On November 24, 2020, plaintiffs filed a complaint against defendant, asserting causes of action for (1) Breach of Implied Warranty of Habitability; (2) Battery; (3) Negligence - Premises Liability/Failure to Warn; (4) Nuisance; (5) Intentional Infliction of Emotional Distress; (6) Negligent Infliction of Emotional Distress; (7) Breach of Contract; (8) Breach of Covenant of Quiet Enjoyment; and (9) Fraudulent Concealment.
Defendant demurs to the second, fifth, sixth, seventh, and ninth causes of action, and moves to strike plaintiffs’ request for attorney fees and punitive damages.
Defendant’s demurrer to the seventh, and ninth causes of action is SUSTAINED with leave to amend. Defendant’s demurrer to the second, fifth and sixth causes of action is OVERRULED.
Defendant’s motion to strike is DENIED.
Defendant demurs to the second, fifth, sixth, seventh, and ninth causes of action on the grounds the causes of action fail to facts sufficient to constitute a claim against defendants.
Second Cause of Action – Battery
Defendant demurs to the second cause of action on the grounds a bedbug bite is not a battery, and there are no allegations that any employee of Defendant touched any Plaintiff.
“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.)
Plaintiffs allege sometime between November 8, 2019 through December 12, 2019, defendants intentionally, willfully and recklessly did acts that resulted in the harmful or offensive contact with the plaintiffs’ person, including, but not limited to, plaintiffs’ body being attacked by bedbugs. (Complaint ¶71.) Plaintiffs claim defendants failed to properly inspect, treat, and abate the bed bug infestation despite prior actual and constructive notice of the bed bug infestation at the Subject Property. (Complaint ¶72.) Moreover, defendants intentionally, willfully and recklessly disregarded such prior knowledge and rented Plaintiffs a room which was infested with bedbugs, knowing full well that Plaintiffs would get attacked by bedbugs. (Complaint ¶74.)
In opposition, plaintiffs cite to Mathias v. Accor Economy Lodging, Inc. (7th Cir. 2003) 347 F.3d 672 to support their contention that permitting known bed bug infestations can constitute a battery. In Mathias, the court held the hotel’s failure to either “warn guests or to take effective measures to eliminate the bedbugs amounted to fraud and probably to battery as well.” (Mathias v. Accor Economy Lodging, Inc. (7th Cir. 2003) 347 F.3d 672, 675.) The court based its decision on the grounds the hotel knew there was bedbugs but refused to close the premises and several guests continued to complain about being bitten. The motel even instructed employees to refer to the bed bugs as ticks; rooms that the motel had placed on “Do not rent, bugs in room” status nevertheless were rented to unsuspecting guests.
Although Seventh Circuit law is not controlling, the court finds Mathias persuasive in instant case. Here, the complaint generally alleges defendants failed to disclose, inspect or warn plaintiffs of the presence of these vermin infestations at the Premises before plaintiffs rented a room in the Premises, even though defendants had actual and constructive notice of the bedbug infestations. On these factual allegations, the court finds that a decision to knowingly subject tenants or guests to a bed bug infestation can amount to a willful disregard of Plaintiffs’ rights and hence be actionable as a battery under California law.
Accordingly, defendant’s demurrer to the second cause of action is OVERRULED.
Fifth Cause of Action – Intentional Infliction of Emotional Distress
Defendant demurs to the fifth cause of action on the grounds there are no factual allegations to establish that Defendant affirmatively intended to inflict emotional distress on any plaintiffs.
“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.)
Plaintiffs allege defendants knowing, intentional and willful failure to put plaintiffs on notice of the bed bug infestations at the Subject Property when they were fully aware of bed bug infestations at the Subject Property prior to Plaintiffs’ stay; knowing, intentional and willful failure to timely and effectively eliminate all bed bug and vermin infestations; and to timely remediate the bed bug infestation contamination, was so extreme and outrageous as to go beyond all bounds of decency. (Complaint ¶104.) Plaintiffs allege they complained to defendants managers’ and agent, including Lizette, about the uninhabitable conditions at the Subject Property but despite plaintiffs’ complaints the infestation of bedbugs continued and were not abated. (Complaint ¶105.) Defendants’ knowing, intentional and willful failure to remedy the bed bug infestations caused plaintiffs severe physical, mental and emotional injuries. (Complaint ¶106.) Plaintiffs allege they complained to defendant the bed bug bites and their injuries but defendants refused to abate the situation. (Complaint ¶¶112, 113.) As a direct and proximate result thereof, plaintiffs endured many sleepless nights and much ongoing emotional and mental distress, coupled with other physical conditions associated with severe presently ongoing mental and emotional distress. (Complaint ¶118.)
The court finds plaintiffs’ allegations sufficient to constitute an intentional infliction of emotional distress cause of action. There is no requirement that the plaintiffs allege when they became aware of the bedbugs, when the informed defendant about the bedbugs, or how long plaintiffs gave defendant to eradicate the bedbugs before vacating. All plaintiffs need to allege is defendant intended to cause emotional distress through outrageous conduct and plaintiffs are suffering from emotional distress.
Accordingly, defendant’s demurrer to the fifth cause of action is OVERRULED.
Sixth Cause of Action – Negligent Infliction of Emotional Distress
Defendant demurs to the sixth cause of action on the grounds negligent infliction of emotional distress is not an independent cause of action.
Defendant claims the court should sustain the demurrer as “there is no independent tort of negligent infliction of emotional distress. [Citation.] The tort is negligence, a cause of action in which a duty to the plaintiff is an essential element.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984; accord, Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1266, fn. 11; Brandwein v. Butler (2013) 218 Cal.App.4th 1485, 1520.) While there is not independent tort of NIED, damages for severe emotional distress are recoverable in a negligence action when they result from the breach of a duty owed to the plaintiff that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two. (Long v. PKS, Inc. (1993) 12 Cal.App.4th 1293, 1297.) If a cause of action is otherwise established, it is settled that damages are given for mental suffering naturally ensuing from the complained of acts. (Id.)
Plaintiffs allege defendants, as owners, operators and managers of the Subject Property, owed their guest, the plaintiffs, a duty to exercise due care towards plaintiffs and provide him with a habitable room. (Complaint ¶121.) Moreover, by owning, maintaining, controlling, and renting rooms to guests such as plaintiffs, the defendants as owners, have a statutory duty to refrain from negligently causing plaintiffs to suffer emotional distress as a result of the defendants' outrageous conduct towards plaintiffs. (Complaint ¶122.) Despite plaintiffs’ complaints the infestation of bedbugs continued and were not abated. (Complaint ¶123.) Plaintiffs did in fact suffer severe emotional distress as a direct and proximate cause of the defendants’ negligent actions in failing to fully investigate or repair or remedy the bedbug infestations including (Complaint ¶¶125, 128.)
Here, plaintiffs have sufficiently alleged a cause of action based on negligence and emotional damages. Plaintiffs have sufficiently alleged duty, breach, causation, and harm and properly seek to recover emotional distress damages under this negligence-based cause of action.
Accordingly, defendant’s demurrer to the sixth cause of action is OVERRULED.
Seventh Cause of Action – Breach of Contract
Defendant demurs to the seventh cause of action on the grounds plaintiffs have not alleged the existence of any contract between themselves and defendant and, moreover, they have not alleged the breach of any specific provision of any 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.)
Plaintiffs allege they entered into a valid rental agreement setting forth the terms surrounding plaintiffs’ stay at the premises. (Complaint ¶132, Exh. A.) Plaintiffs allege defendants breached the rental agreement by failing to provide habitable Premises to plaintiffs. (Complaint ¶138.) The Premises were infested with bedbugs, thereby causing a bed bug infestation to grow on the Premises. (Complaint ¶138.) Because of defendants’ breach of the covenant of good faith and fair dealing, plaintiffs suffered and presently continue to suffer the aforementioned damages as well as the loss of enjoyment of the full Premises, thereby entitling him to full restitution of all money paid. (Complaint ¶139.)
Plaintiffs concede the agreement is entered between defendant and Plaintiff Gayane’s husband, Tigran Gasparyan. “California law permits third party beneficiaries to enforce the terms of a contract made for their benefit.” (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1021 [citing Civ. Code, § 1559].) The court finds plaintiffs have sufficiently alleged the relationship between Tigran and the plaintiffs and that the rental agreement was for their benefit. (See Martin v. Bridgeport Community Association, Inc. (2009) 173 Cal.App.4th 1024, 1034.)
However, plaintiffs have failed to allege the terms of the contract. “A written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect. [Citation.] In order to plead a contract by its legal effect, plaintiff must ‘allege the substance of its relevant terms. This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions.’ [Citation.]” (McKell v. Washington Mut., Inc.¿(2006) 142 Cal.App.4th 1457, 1489 [citing 4 Witkin, Cal. Proc. (4th ed. 1997) Pleading, §§ 479-480, pp. 572-73].)
Accordingly, defendant’s demurrer to the seventh cause of action is SUSTAINED with leave to amend.
Ninth Cause of Action – Fraudulent Concealment
Defendant demurs to the ninth cause of action on the grounds the complaint does not plead fraud with the required level of specificity.
The elements of fraud that give rise to a tort action for deceit are “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e. to induce reliance; (d) justifiable reliance; and (e) resulting damage. [Citation.]” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974; see also CACI No. 1900.)
Plaintiffs allege before November 8, 2019, defendants knew of bedbug infestations at the Subject Property; however, defendants intentionally withheld this information from plaintiffs. (Complaint ¶151.) Knowledge regarding the existence of bedbugs at plaintiffs’ Unit and Subject Property was materially relevant to plaintiff and defendants, as, had plaintiffs known of the bedbugs within the unit, plaintiffs would not have stayed at Subject Property. (Complaint ¶152.) Defendants’ managing agents, including “Ivette”, authorized and/or ratified all offensive acts outlined in this cause of action. (Complaint ¶154.) Defendants knew that the Subject Property was infested with bedbugs and that prospective guests would incur significant physical injuries and severe emotional distress, along with property damage and economic losses, and therefore intentionally did not notify plaintiffs so that Defendants could ensure that the Premises would be rented out by plaintiffs. (Complaint ¶155.)
The court finds plaintiff's fraudulent concealment allegations are conclusory and have not been pled with the requisite specificity. Plaintiffs have not pled any facts indicating that defendant had actual knowledge of the presence of bedbugs in plaintiffs’ room at the time plaintiff was renting the unit.
Accordingly, defendant’s demurrer to the ninth cause of action is SUSTAINED with leave to amend.
Motion to Strike
Defendant moves to strike portions of the complaint pursuant to Code of Civil Procedure sections 435 and 436. Defendant moves to strike p. 12:16-13:2, p. 13:3-4, p. 18:16-21, p. 18:22-19:7, p. 24:11-13, p. 25:5-7, p. 26:17, and p. 26:18.
Defendant moves to strike plaintiffs’ request for attorney fees on the grounds plaintiff has failed to allege any contractual language or statute giving rise to a right to recovery attorneys’ fees against defendant. Moreover, Code of Civil Procedure §1021.5 provides no basis for recovery of attorneys' fees here, as the complaint does not allege facts which even remotely suggest that the public at large will benefit from this litigation.
Section 1021.5 provides the court with discretion to award attorneys’ fees to a successful party in an action which has resulted in the enforcement of an important right affecting the public interest if a significant benefit has been conferred on the general public or a large class of persons, the necessity and financial burden of private enforcement makes the award appropriate, and such fees should not be paid out of the recovery in the interest of justice. (See CCP §1021.5.)
As an award of attorneys’ fees pursuant to Code of Civil Procedure section 1021.5 is discretionary and depends on a weighing of factors, it cannot be determined that plaintiffs are not entitled to section 1021.5 attorneys’ fees at this stage. Furthermore, unsupported attorneys fee allegations need not be stricken pursuant to a motion to strike, since later discovery may reveal a basis for their recovery.¿ (Camenisch v.¿Sup. Ct.¿(1996) 44 Cal.App.4th 1689, 1699.)
Defendant moves to strike plaintiffs request for punitive damages on the grounds Plaintiffs fail to allege facts demonstrating fraud, malice or oppression directed at Plaintiffs.
“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. [Citations.] In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. [Citations.] In ruling on a motion to strike, courts do not read allegations in isolation. [Citation.]” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)
The court finds plaintiffs have alleged facts sufficient to support punitive damages on a motion to strike. Plaintiffs allege defendant’s conduct was in conscious disregard of the plaintiffs’ rights and ratified Ivette’s conduct.
Accordingly, defendant’s motion to strike is denied.
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