This case was last updated from Los Angeles County Superior Courts on 01/14/2022 at 04:39:30 (UTC).

ROSINA LLAMAS ET AL VS ECONOMY INN ET AL

Case Summary

On 02/26/2018 ROSINA LLAMAS filed a Personal Injury - Other Personal Injury lawsuit against ECONOMY INN. This case was filed in Los Angeles County Superior Courts, Torrance Courthouse located in Los Angeles, California. The Judges overseeing this case are STEPHEN I. GOORVITCH, DAVID J. COWAN, MICHAEL E. WHITAKER, DEIRDRE HILL and FREDERICK C. SHALLER. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5445

  • Filing Date:

    02/26/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

STEPHEN I. GOORVITCH

DAVID J. COWAN

MICHAEL E. WHITAKER

DEIRDRE HILL

FREDERICK C. SHALLER

 

Party Details

Plaintiff

LLAMAS AN INDIVIDUAL ROSINA

Respondents and Defendants

BHAKTA PRAVIN

DOES 1 TO 20

ECONOMY INN

Guardian Ad Litem

LLAMAS ROSINA AND INDIVIDUALLY

Minors

GONZALEZ IZAIAH

GONZALEZ AIDEN

Attorney/Law Firm Details

Plaintiff Attorney

JANFAZA ILAN

Defendant Attorney

PATEL TEJAS BABARBHAI

Minor Attorney

LAW OFFICES OF ILAN N. ROSEN JANFAZA

 

Court Documents

Stipulation and Order - STIPULATION AND ORDER JOINT STIPULATION TO CONTINUE TRIAL AND ALL RELATED DATES

12/27/2021: Stipulation and Order - STIPULATION AND ORDER JOINT STIPULATION TO CONTINUE TRIAL AND ALL RELATED DATES

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (POST-MEDIATION STATUS CONFERENCE) OF 10/01/2021

10/1/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (POST-MEDIATION STATUS CONFERENCE) OF 10/01/2021

Minute Order - MINUTE ORDER (POST-MEDIATION STATUS CONFERENCE)

10/1/2021: Minute Order - MINUTE ORDER (POST-MEDIATION STATUS CONFERENCE)

Motion to Compel - MOTION TO COMPEL PLAINTIFFS APPEARANCE AT DEPOSITION, PRODUCTION OF DOCUMENTS AT DEPOSITION, AND REQUEST FOR SANCTIONS IN THE AMOUNT OF $801.50 AGAINST PLAINTIFF AND HER COUNSEL; M

11/17/2021: Motion to Compel - MOTION TO COMPEL PLAINTIFFS APPEARANCE AT DEPOSITION, PRODUCTION OF DOCUMENTS AT DEPOSITION, AND REQUEST FOR SANCTIONS IN THE AMOUNT OF $801.50 AGAINST PLAINTIFF AND HER COUNSEL; M

Minute Order - MINUTE ORDER (POST-MEDIATION STATUS CONFERENCE; ORDER TO SHOW CAUSE RE: DEF...)

11/23/2021: Minute Order - MINUTE ORDER (POST-MEDIATION STATUS CONFERENCE; ORDER TO SHOW CAUSE RE: DEF...)

Notice of Ruling

11/24/2021: Notice of Ruling

Minute Order - MINUTE ORDER (POST-MEDIATION STATUS CONFERENCE; HEARING ON MOTION TO COMPEL...)

12/17/2021: Minute Order - MINUTE ORDER (POST-MEDIATION STATUS CONFERENCE; HEARING ON MOTION TO COMPEL...)

Demand for Jury Trial

3/29/2021: Demand for Jury Trial

Answer - ANSWER TO FIRST AMENDED COMPLAINT

3/29/2021: Answer - ANSWER TO FIRST AMENDED COMPLAINT

Notice of Posting of Jury Fees

3/29/2021: Notice of Posting of Jury Fees

Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE; CASE MANAGEME...)

3/16/2021: Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE; CASE MANAGEME...)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE; CASE MANAGEME...) OF 03/16/2021

3/16/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE; CASE MANAGEME...) OF 03/16/2021

Notice of Ruling

3/17/2021: Notice of Ruling

Notice of Posting of Jury Fees

3/19/2021: Notice of Posting of Jury Fees

Reply - REPLY REPLY TO OPPOSITION TO DEMURRER

3/8/2021: Reply - REPLY REPLY TO OPPOSITION TO DEMURRER

Case Management Statement

3/1/2021: Case Management Statement

Opposition - OPPOSITION PLAINTIFFS OPPOSITION TO DEFENDANTS, ECONOMY INN AND PRAVIN M. BHAKTAS, DEMURRER TO PLAINTIFFS FIRST AMENDED COMPLAINT FOR PERSONAL INJURIES

3/3/2021: Opposition - OPPOSITION PLAINTIFFS OPPOSITION TO DEFENDANTS, ECONOMY INN AND PRAVIN M. BHAKTAS, DEMURRER TO PLAINTIFFS FIRST AMENDED COMPLAINT FOR PERSONAL INJURIES

Case Management Statement

3/4/2020: Case Management Statement

35 More Documents Available

 

Docket Entries

  • 06/30/2022
  • Hearing06/30/2022 at 08:30 AM in Department M at 825 Maple Ave., Torrance, CA 90503; Jury Trial

    Read MoreRead Less
  • 06/23/2022
  • Hearing06/23/2022 at 10:00 AM in Department M at 825 Maple Ave., Torrance, CA 90503; Final Status Conference

    Read MoreRead Less
  • 01/26/2022
  • Hearing01/26/2022 at 08:30 AM in Department M at 825 Maple Ave., Torrance, CA 90503; Post-Mediation Status Conference

    Read MoreRead Less
  • 01/26/2022
  • Hearing01/26/2022 at 08:30 AM in Department M at 825 Maple Ave., Torrance, CA 90503; Hearing on Motion to Compel Deposition

    Read MoreRead Less
  • 12/27/2021
  • DocketStipulation and Order (JOINT STIPULATION TO CONTINUE TRIAL AND ALL RELATED DATES); Filed by Pravin Bhakta (Defendant); Economy Inn (Defendant)

    Read MoreRead Less
  • 12/17/2021
  • Docketat 10:00 AM in Department M, Deirdre Hill, Presiding; Hearing on Motion to Compel (Deposition) - Not Held - Continued - Stipulation

    Read MoreRead Less
  • 12/17/2021
  • Docketat 10:00 AM in Department M, Deirdre Hill, Presiding; Post-Mediation Status Conference - Not Held - Continued - Stipulation

    Read MoreRead Less
  • 12/17/2021
  • Docketat 08:30 AM in Department M, Deirdre Hill, Presiding; Hearing on Motion to Compel (Deposition) - Not Held - Advanced and Continued - by Court

    Read MoreRead Less
  • 12/17/2021
  • DocketMinute Order ( (Post-Mediation Status Conference; Hearing on Motion to Compel...)); Filed by Clerk

    Read MoreRead Less
  • 12/08/2021
  • Docketat 08:30 AM in Department M, Deirdre Hill, Presiding; Hearing on Motion to Compel (Deposition) - Not Held - Rescheduled by Party

    Read MoreRead Less
55 More Docket Entries
  • 04/14/2020
  • DocketMinute Order ( (Court Order re Continuance)); Filed by Clerk

    Read MoreRead Less
  • 04/14/2020
  • DocketCertificate of Mailing for ((Court Order re Continuance) of 04/14/2020); Filed by Clerk

    Read MoreRead Less
  • 03/06/2020
  • Docketat 08:30 AM in Department 32, Michael E. Whitaker, Presiding; Order to Show Cause Re: (Failure to Serve/TSC) - Not Held - Continued - Party's Motion

    Read MoreRead Less
  • 03/06/2020
  • DocketMinute Order ( (Order to Show Cause Re: Failure to Serve/TSC)); Filed by Clerk

    Read MoreRead Less
  • 03/04/2020
  • DocketCase Management Statement; Filed by Rosina Llamas, an individual (Plaintiff); Izaiah Gonzalez, a minor by Rosina Llamas his guardian ad litem (Plaintiff); Aiden Gonzalez, a minor by Rosina Llamas his guardian ad litem (Plaintiff)

    Read MoreRead Less
  • 08/26/2019
  • Docketat 08:30 AM in Department 5, Frederick C. Shaller, Presiding; Jury Trial - Not Held - Advanced and Vacated

    Read MoreRead Less
  • 08/12/2019
  • Docketat 10:00 AM in Department 5, Frederick C. Shaller, Presiding; Final Status Conference - Held

    Read MoreRead Less
  • 08/12/2019
  • DocketMinute Order ( (Final Status Conference)); Filed by Clerk

    Read MoreRead Less
  • 02/26/2018
  • DocketCOMPLAINT FOR DAMAGES 1. BATTERY ;ETC

    Read MoreRead Less
  • 02/26/2018
  • DocketComplaint; Filed by null

    Read MoreRead Less

Tentative Rulings

b'

Case Number: BC695445 Hearing Date: December 17, 2021 Dept: M

\r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n
\r\n

Superior\r\n Court of California

\r\n

County\r\n of Los Angeles

\r\n

Southwest\r\n District

\r\n

Torrance\r\n Dept. M

\r\n
\r\n

\r\n

ROSINA\r\n LLAMAS, et al.,

\r\n
\r\n

\r\n

\r\n

\r\n

Plaintiffs,

\r\n
\r\n

\r\n

Case No.:

\r\n

\r\n
\r\n

\r\n

BC695445

\r\n
\r\n

\r\n

vs.

\r\n
\r\n

\r\n
\r\n

\r\n

[Tentative]\r\n RULING

\r\n

\r\n
\r\n

\r\n

ECONOMY\r\n INN, et al.,

\r\n
\r\n

\r\n

\r\n

\r\n

Defendants.

\r\n

\r\n
\r\n

\r\n
\r\n

\r\n
\r\n

\r\n
\r\n

\r\n
\r\n

\r\n
\r\n

\r\n
\r\n\r\n

Hearing Date: December 17, 2021

\r\n\r\n

\r\n\r\n

Moving Parties: Defendants Economy Inn and Pravin M.\r\nBhakta

\r\n\r\n

Responding\r\nParty: None

\r\n\r\n

Motion to Compel the Deposition\r\nof Plaintiff’s Appearance at Deposition, Production of Documents at Deposition

\r\n\r\n

\r\n\r\n

The court considered the moving\r\npapers. No opposition was filed.

\r\n\r\n

RULING

\r\n\r\n

The motion is GRANTED. Plaintiff Rosina Llamas is ordered to appear\r\nfor her deposition within 20 days, either in person or remotely, as allowed\r\nunder CCP §2025.310.

\r\n\r\n

The\r\ncourt orders plaintiff Rosina Llamas and plaintiff’s attorney of record The Law Offices of Ilan N. Rosen\r\nJanfaza to pay monetary sanctions in\r\nthe amount of $337.50, payable within 30 days.

\r\n\r\n

BACKGROUND

\r\n\r\n

On February 26, 2018, plaintiffs\r\nRosina Llamas, Izaiah Gonzalez, and Aiden Gonzalez filed a complaint against\r\nEconomy Inn and Pravin M Bhakta for (1) battery, (2) negligence, (3) negligence\r\nper se, (4) NIED, (5) IIED, (6) fraudulent concealment, and (7) public\r\nnuisance.

\r\n\r\n

On December 8, 2020, Judge Goorvitch\r\n(Personal Injury Hub) ruled on defendants’ demurrer as follows: sustained with leave to amend as to the 1st\r\ncause of action, 6th cause of action, and 7th cause of\r\naction. The court overruled the demurrer\r\nas to the 5th cause of action for IIED. The court denied the motion to strike as to\r\npunitive damages and granted it as to attorney’s fees.

\r\n\r\n

On January 4, 2021, plaintiffs filed\r\na FAC for (1) battery, (2) negligence, (3) negligence per se, (4) NIED, (5)\r\nIIED, (6) fraudulent concealment, and (7) public nuisance.

\r\n\r\n

On March 16, 2021, the court\r\nsustained defendants’ demurrer to the 1st, 6th, and 7th\r\ncauses of action in the FAC without leave to amend.

\r\n\r\n

LEGAL AUTHORITY

\r\n\r\n

CCP §2025.450(a) provides: “If, after service of a deposition notice, a\r\nparty to the action or an officer, director, managing agent, or employee of a\r\nparty, . . , without having served a valid objection under Section 2025.410,\r\nfails to appear for examination, or to proceed with it, or to produce for\r\ninspection any document . . . described in the deposition notice, the party\r\ngiving the notice may move for an order compelling the deponent’s attendance\r\nand testimony, and the production for inspection of any document . . .\r\ndescribed in the deposition notice.”

\r\n\r\n

CCP §2025.450(b) provides, “A\r\nmotion under subdivision (a) shall comply with both of the following:

\r\n\r\n

(1) The\r\nmotion shall set forth specific facts showing good cause justifying the\r\nproduction for inspection of any document, electronically stored information,\r\nor tangible thing described in the deposition notice.

\r\n\r\n

(2) The\r\nmotion shall be accompanied by a meet and confer declaration under Section\r\n2016.040, or, when the deponent fails to attend the deposition and produce the\r\ndocuments, electronically stored information, or things described in the\r\ndeposition notice, by a declaration stating that the petitioner has contacted\r\nthe deponent to inquire about the nonappearance.”

\r\n\r\n

DISCUSSION

\r\n\r\n

Defendants Economy Inn and Pravin M.\r\nBhakta request an order compelling plaintiff Rosina Llamas on behalf of herself\r\nand as guardian ad litem for minors Izaiah Gonzalez and Aiden Gonzalez to\r\nappear for deposition and to produce documents within ten days of the hearing.

\r\n\r\n

Defendants served a deposition\r\nnotice for July 1, 2021. Plaintiffs’\r\ncounsel was unavailable for July 1 and defense counsel requested alternative\r\ndates. On September 7, 2021, defendants\r\nserved plaintiff with a first amended notice of deposition for September\r\n28. On September 24, 2021, plaintiffs’\r\ncounsel sent an email to defense counsel stating that he was unavailable for\r\ndeposition on September 28. On September\r\n28, defense counsel requested alternative dates. On September 29, defendants served plaintiff\r\nwith a third notice of deposition for a date of October 5, 2021. On October 1, 2021, plaintiff served\r\ndefendant with a notice of objection. \r\nDefendants argue that none of the objections have merit. On October 8, defense counsel sent a letter\r\nto plaintiffs’ counsel requesting dates for plaintiff’s deposition. Plaintiffs’ counsel requested a date late\r\nNovember or early December. On October\r\n14, defense counsel responded with November 18, 22, or 24, of which there was\r\nno response. On October 21, defendants\r\nserved plaintiff with a fourth notice of deposition for November 22. On November 17, plaintiffs’ counsel sent an\r\nemail to defense counsel that he was unavailable.

\r\n\r\n

There is no opposition.

\r\n\r\n

The court finds that defendants\r\nproperly served plaintiff with notices of deposition and that she failed to\r\nappear and to produce responsive documents.

\r\n\r\n

The motion is GRANTED.

\r\n\r\n

If a motion to compel deposition is\r\ngranted, the court shall impose a monetary sanction in favor of the party who\r\nnoticed the deposition and against the deponent or the party with whom the\r\ndeponent is affiliated, unless the court finds that the one subject to the\r\nsanction acted with substantial justification or that other circumstances make\r\nthe imposition of the sanction unjust. \r\nCCP § 2025.450(g)(1).

\r\n\r\n

Under CCP § 2023.030(a), “[t]he\r\ncourt may impose a monetary sanction ordering that one engaging in the misuse\r\nof the discovery process, or any attorney advising that conduct, or both pay\r\nthe reasonable expenses, including attorney’s fees, incurred by anyone as a\r\nresult of that conduct. If a monetary\r\nsanction is authorized by any provision of this title, the court shall impose\r\nthat sanction unless it finds that the one subject to the sanction acted with\r\nsubstantial justification or that other circumstances make the imposition of\r\nthe sanction unjust.” Under CCP §\r\n2023.010, an example of the misuse of the discovery process is “(d) Failing to\r\nrespond or to submit to an authorized method of discovery.”

\r\n\r\n

Defendants request sanctions\r\nagainst plaintiff and plaintiffs’ attorney of record, The Law Offices of Ilan\r\nN. Rosen Janfaza, in the amount of $801.50. \r\nThe court finds that $337.50 ($185/hr. x 1.5 hrs.; filing fee) is a\r\nreasonable amount to be imposed against plaintiff and her attorney of record.

\r\n\r\n

Defendants are ordered to give\r\nnotice of ruling.

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

.

\r\n\r\n

The motion is therefore GRANTED.

\r\n\r\n

\r\n\r\n

Accordingly, the motions are\r\nGRANTED.

\r\n\r\n

Defendant is ordered to give notice of\r\nthis ruling.

'

Case Number: BC695445    Hearing Date: March 16, 2021    Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

ROSINA LLAMAS, et al.,

Plaintiffs,

Case No.:

BC695445

vs.

[Tentative] RULING

ECONOMY INN, et al.,

Defendant.

Hearing Date: March 16, 2021

Moving Parties: Defendants Economy Inn and Pravin M Bhakta

Responding Party: Plaintiffs Rosina Llamas, et al.

Demurrer to First Amended Complaint

The court considered the moving, opposition, and reply papers.

RULING

The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the 1st, 6th, and 7th causes of action. Defendants are ordered to file an answer within ten days.

BACKGROUND

On February 26, 2018, plaintiffs Rosina Llamas, Izaiah Gonzalez, and Aiden Gonzalez filed a complaint against Economy Inn and Pravin M Bhakta for (1) battery, (2) negligence, (3) negligence per se, (4) NIED, (5) IIED, (6) fraudulent concealment, and (7) public nuisance.

On December 8, 2020, Judge Goorvitch (Personal Injury Hub) ruled on defendants’ demurrer as follows: sustained with leave to amend as to the 1st cause of action, 6th cause of action, and 7th cause of action. The court overruled the demurrer as to the 5th cause of action for IIED. The court denied the motion to strike as to punitive damages and granted it as to attorney’s fees.

On January 4, 2021, plaintiffs filed a FAC for (1) battery, (2) negligence, (3) negligence per se, (4) NIED, (5) IIED, (6) fraudulent concealment, and (7) public nuisance.

LEGAL AUTHORITY

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. “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905. “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 v. Mirda (2007) 147 Cal. App. 4th 740, 747.

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. CCP §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. CCP §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. CCP §436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. CCP §437.

DISCUSSION

Defendants demur to the 1st cause of action for battery, 6th cause of action for fraudulent concealment, and 7th cause of action for public nuisance.

In the FAC, plaintiffs allege that on February 26, 2016, plaintiffs checked in at the motel and were assigned Room 2013. FAC, ¶13. On February 27, 2016, plaintiffs began to feel a bit of discomfort and itchiness. They did not think much of it and simply went to sleep for another night. Id., ¶14. Upon waking up on February 28, 2016, plaintiff noticed that she had been bitten many times on both her arms, lower back, and legs. She later realized they must have been from bedbugs. Id., ¶15. After complaining to the motel on February 28, 2016, members of the motel staff denied that there was any bedbug problem. Id., ¶16. On February 29, 2016, plaintiffs presented themselves to Valle Verde Medical Group, where they were examined. The assessment confirmed bites from bugs during their stay at the motel. They were prescribed medications to treat the bites and now have physical scarring on their body. Id., ¶18.

Plaintiffs allege that defendants deliberately and recklessly chose not to inspect or otherwise ensure that plaintiffs’ room was free of bedbugs immediately before plaintiffs’ stay at the motel, willfully disregarding knowledge of a prior bedbug infestation known to defendants. Id., ¶20. Defendants failed to eradicate a prior bedbug infestation of plaintiffs’ room, despite knowledge of a prior infestation in that room. Id., ¶21. Front desk personnel, motel management, and housekeeping staff at the motel were all aware of the bedbug infestation in the motel and in plaintiffs’ room. Id., ¶25. Motel management did not implement adequate policies and procedures to sufficiently train employees of the motel to inspect rooms for bedbug infestations and to protect motel guests from exposure prior to plaintiffs’ stay. Management have not been replaced by defendants. Id., ¶34.

1st cause of action for battery

“Battery is an offensive and intentional touching without the victim’s consent.” Kaplan v. Mamelak (2008) 162 Cal. App. 4th 637, 645. “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.” Yun Hee So v. Sook Ja Shin (2013) 212 Cal. App. 4th 652, 669. “In an action for civil battery the element of intent is satisfied if the evidence shows defendant acted with a ‘willful disregard’ of the plaintiff's rights.” Ashcraft v. King (1991) 228 Cal. App. 3d 604, 613

Plaintiffs allege that defendants intentionally and recklessly did acts that were unconsented to by plaintiffs and therefore resulted in offensive contact with their person, including defendants’ deliberate choice not to eradicate a bedbug infestation in the motel or to inspect or ensure that plaintiffs’ room was free of bedbugs and not to inspect the bed skirts and not to notify plaintiffs of the presence of bedbugs. FAC, ¶41.

The court finds that the allegations are insufficient to meet the elements. Plaintiffs fail to allege sufficient facts to show the requisite intent to cause harmful contact. The allegations are conclusory. Plaintiffs also allege omissions rather than affirmative conduct. Further, plaintiffs cite to no California cases addressing a cause of action for battery in a bedbug case.

The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

6th cause of action for fraudulent concealment

The elements of a fraud claim are (1) misrepresentation; (2) knowledge of falsity; (3) intent to deceive; and (4) reliance and resulting damage. Vega v. Jones, Day, Reavis & Pogue (2004) 121 Cal. App. 4th 282, 290. “To withstand demurrer, the facts constituting every element of fraud must be alleged with particularity, and the claim cannot be salvaged by references to the general policy favoring the liberal construction of pleadings.” Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal. App. 4th 772, 782. The particularity requirement necessitates pleadings facts that “show how, when, where, to whom, and by what means the representations were tendered.” Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.

“[T]o establish fraud through nondisclosure or concealment of facts, it is necessary to show the defendant ‘was under a legal duty to disclose them.’” OCM Principal Opportunities Fund v. CIBC World Markets Corp. (2007) 157 Cal. App. 4th 835, 845. Nondisclosure or concealment may constitute actionable fraud when: (1) there is a fiduciary relationship between the parties; (2) the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) the defendant actively conceals a material fact from the plaintiff; and (4) the defendant makes partial representations but also suppresses some material facts. Los Angeles Memorial Coliseum Commission v. Insomniac, Inc. (2015) 233 Cal. App. 4th 803, 831.

Plaintiffs allege that defendants, through their employees and agents, were aware of the substandard health conditions in the motel with the existence of bedbugs in the room defendants assigned to plaintiff. FAC, ¶88. Front desk personal, motel management, and housekeeping staff at the motel were all aware of the bedbug infestation in the motel and in plaintiffs’ room. Id., ¶89. They had a duty to protect patrons from injury as a guest of a motel is to be warned of any dangerous condition on the property that defendants are previously aware. Id., ¶90. Front desk personnel intentionally did not disclose the material fact of the bedbug infestation during check-in, a fact known to those employees and agents. Id., ¶92. Defendants intended to deceive plaintiffs and take advantage of plaintiffs’ lack of knowledge of the infestation in order to turn a profit on a night’s stay at their motel. Id., ¶97. Plaintiffs reasonably relied on defendants’ deception. Id., ¶98. Plaintiffs were harmed. Id., ¶99.

Defendant argues that the allegations are conclusory. Defendant contends that plaintiff has not alleged facts to support the element of “knowledge of falsity” that the guest room was infested with bed bugs.

The court finds that plaintiffs failed to plead with the requisite particularity. The allegations are also insufficient as to knowledge and intent to deceive. Plaintiffs fail to allege specific facts establishing both actual knowledge prior to plaintiffs’ use of the room and affirmative conduct constituting concealment. The allegations are at best contentions and deductions and not proper factual allegations to the heightened degree required for pleading fraud.

The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

7th cause of action for public nuisance

“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.” Civil Code §3480. “Of course, not every interference with collective social interest constitutes a public nuisance. To qualify, and thus be enjoinable, the interference must be both substantial and unreasonable.” People Ex Rel. Gallo v. Acuna (1997) 14 Cal. 4th 1090, 1105.

The essential factual elements of a public nuisance claim are that (1) defendant created a condition or permitted a condition to exist that was harmful to health, was indecent or offensive to the senses, or was an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property; (2) that the condition affected a substantial number of people at the same time; (3) that an ordinary person would be reasonably annoyed or disturbed by the condition; (4) that the seriousness of the harm outweighs the social utility of defendant’s conduct; (5) that plaintiff did not consent to defendant’s conduct; and (6) that defendant’s conduct was a substantial factor in causing plaintiff’s harm. CACI 2020.

In the FAC, plaintiffs allege that bedbugs spread from one host to another. Consequently, those bedbugs at the motel would travel with guests to locations outside the motel, resulting in infestations outside the motel. FAC, ¶108. With many guests going in and out of the motel, this bedbug infestation accordingly affects the community at large. Id., ¶109. Plaintiffs’ use and enjoyment of their room was greatly affected, which is separate from the harm suffered by the general public. Id., ¶110.

The court finds that the allegations are insufficient to support a cause of action based on general public nuisance. The allegations do not show an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property that affects at the same time an entire community or neighborhood. The allegations do not support that the purported interference is substantial and unreasonable. Plaintiffs also lack standing because they were merely a transient “lodger” and lack a property interest. They do not allege sufficient facts that they are a member of a relevant community.

The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

Defendants are ordered to give notice of the ruling.

Case Number: BC695445    Hearing Date: December 08, 2020    Dept: 32

Superior Court of California

County of Los Angeles

Department 32

rosina llamas, et al.,

Plaintiffs,

v.

economy inn, et al.,

Defendants.

Case No.: BC695445

Hearing Date: December 8, 2020

[TENTATIVE] order RE:

DEMURRER TO AND mOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT

Background

Plaintiffs Rosina Llamas, Izaiah Gonzalez, and Aiden Gonzalez (“Plaintiffs”) allege that they were bitten by bed bugs while staying in a hotel owned and operated by Defendants Economy Inn and Pravin M. Bhakta (collectively, “Defendants”). Plaintiffs assert the following causes of action: (1) Battery, (2) Negligence, (3) Negligence per se, (4) Negligent infliction of emotional distress, (5) Intentional infliction of emotional distress, (6) Fraudulent concealment, and (7) Public nuisance. Now, Defendants demur to the following causes of action:

First Cause of Action – Battery

Fifth Cause of Action – Intentional infliction of emotional distress

Sixth Cause of Action – Fraudulent concealment

Seventh Cause of Action – Public nuisance

The demurrer is sustained in part and overruled in part. Defendants also move to strike the prayers for punitive damages and attorneys’ fees, as well as related allegations. The motion to strike is granted in part and denied in part.

LEGAL STANDARD

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint.  (Code Civ. Proc., § 452.) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

Any party, within the time allowed to respond to a pleading, may serve and file a

motion to strike the whole pleading or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

DISCUSSION

A. First Cause of Action – Battery

The elements of a civil battery are: (1) Defendant intentionally did an act which resulted in a harmful or offensive contact with the plaintiff's person; (2) Plaintiff did not consent to the contact; and (3) The harmful or offensive contact caused injury, damage, loss or harm to the plaintiff.”  (Fluharty v. Fluharty (1997) 59 Cal.App.4th 484, 497, internal quotations and citations omitted.) Plaintiffs do not allege that Defendants committed an intentional act. In their opposition, Plaintiffs argue that there is a cause of action for battery because Defendants did not manage their employees appropriately, as the employees were not trained to identify bedbug infestations and did not clean the rooms appropriately. This is not sufficient to state a cause of action for battery.

B. Fifth Cause of Action – Intentional Infliction of Emotional Distress

The elements of a claim for intentional infliction of emotional distress, are: (1) outrageous conduct by the defendant, (2) with the intent to cause emotional distress or reckless disregard as to the probability of causing emotional distress, (3) the plaintiff’s severe emotional distress, and (4) that the defendant’s outrageous conduct caused the emotional distress. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 617.) Plaintiffs allege that Defendants were aware of the bedbug infestation but failed to eradicate it and allowed guests to stay in those rooms. For pleading purposes, this is sufficient to state a claim.

C. Sixth Cause of Action – Fraudulent Concealment

The elements of an action for fraud and deceit based on 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. (Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 612-613.) A plaintiff must allege fraud with particularity. “This means: (1) general pleading of the legal conclusion of fraud is insufficient; and (2) every element of the cause of action for fraud must be alleged in full, factually and specifically, and the policy of liberal construction of pleading will not usually be invoked to sustain a pleading that is defective in any material respect.” (Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1331.) Plaintiffs have not alleged that Defendants were under a duty to disclose the bedbug infestation to Plaintiffs. To state a causes of action for fraudulent concealment, Plaintiffs must allege that Defendants were under such a duty, and the source of that duty.

D. Seventh Cause of Action – Public Nuisance

To state a claim for public nuisance, Plaintiffs must allege that Defendants, by acting, or failing to act: (1) Created a condition that was harmful to health; (2) The condition affected a substantial number of people at the same time; (3) An ordinary person would be reasonably annoyed or disturbed by the condition; (4) The seriousness of the harm outweighs the social utility of the conduct; (5) Plaintiffs did not consent to the conduct; (6) Plaintiffs suffered harm that was different from the type of harm suffered by the general public; and (7) Defendants’ conduct was a substantial factor in causing plaintiff’s harm. (Birke v. Oakwood Worldwide (2009) 169 Cal. App. 4th 1540, 1548.) To state a claim for public nuisance, the condition must impact a considerable number of people, such as a community or neighborhood. (Kempton v. City of L.A. (2008) 165 Cal.App.4th 1344, 1348.) Here, Plaintiffs have not alleged a condition that impacts a considerable number of people. Rather, Plaintiffs have alleged only harm to themselves. (See Complaint, ¶ 91.) This is not sufficient.

E. Motion to Strike – Prayer for Punitive Damages

To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code section 3294. (Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) Per Civil Code section 3294, a plaintiff must allege that the defendant has been guilty of oppression, fraud or malice. (Civ. Code, § 3294, subd. (a).) “Malice is defined in the statute as conduct 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.” (Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim.” (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166, internal citations and footnotes omitted.) Plaintiffs allege that Defendants knew that their hotel rooms were infested with bedbugs and allowed Plaintiffs to stay in the rooms without warning them or taking steps to protect their health. This is sufficient to state a claim for punitive damages, because, if true, it demonstrates the requisite level of malice and recklessness.

F. Motion to Strike – Attorneys’ Fees

In California, a party cannot recover attorneys’ fees unless a statute specifically provides for the recovery of attorneys’ fees, or the parties agree to an award of attorneys’ fees.  (Code Civ. Proc., §§ 1021, 1033.5, subd. (a)(10).) Plaintiffs have not alleged any facts to show she is entitled to attorneys’ fees.

Conclusion and Order

The Court rules as follows:

1. Demurrer to First Cause of Action (Battery) – Sustained With Leave to Amend

2. Demurrer to Fifth Cause of Action (IIED) – Overruled.

3. Demurrer to Sixth Cause of Action (Fraudulent Concealment) – Sustained with Leave to Amend.

4. Demurrer to Seventh Cause of Action (Public Nuisance) – Sustained with Leave to Amend.

5. Motion to Strike Prayer for Punitive Damages – Denied.

6. Motion to Strike Prayer for Attorneys’ Fees – Granted.

Defendants shall provide notice and file proof of such with the Court.

DATED: December 8, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court