Hernandez vs. Ayres-Orange, L.P.

demurer to the quiet title action is sustained (as explained above).

The court finds that the FAC adequately pleads a cause of action for cancellation of instruments. The FAC alleges that Defendants recorded the superseding CC&R’s and alleges the basis as to why they should be rescinded (the HOA was terminated/a defunct entity at the time of the recording, among other reasons). The FAC also pleads that there is a reasonable apprehension of serious injury, including the restricted use of her property pursuant to the superseding CC&R’s and diminished property value. As Plaintiff notes, a plaintiff is permitted to plead alternative and inconsistent theories or remedies. (See, e.g., Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402.)

Accordingly, the court OVERRULES the demurrer to the fifth cause of action.

8th, 9th and 10th C/As (defamation, invasion of privacy) - SUSTAIN

In its opposing papers, Plaintiff states that it is “voluntarily omitting” the eighth, ninth and tenth causes of action. (Opp’n Br. at p. 2, lines 5-9.)

Accordingly, the court SUSTAINS the demurrer as to these causes of action without leave to amend.

Moving Defendants to give notice.

18 Hernandez vs. Demurrer Ayres-Orange, L.P. Motion to Strike

1. Demurrer

The court OVERRULES in part and SUSTAINS in part, Defendant AYRES-ORANGE, L.P.’ demurrer to the Complaint of Plaintiffs RICHARD HERNANDEZ and RUBI HERNANDEZ, by and through her guardian ad litem

RICHARD HERNANDEZ. The court grants 20 days leave to amend to correct the deficiencies.

The Complaint asserts the following causes of action against Defendant AYRES-ORANGE, L.P., the only specifically named defendant:

1. Negligence 2. Private nuisance 3. Public nuisance 4. Intentional infliction of emotional distress (IIED) 5. Breach of contract 6. Fraudulent concealment

Defendant demurs to each cause of action, generally and on the ground of uncertainty. (Code Civ. Proc., § 430.10(e), (f).)

First, as to uncertainty, the Complaint is not so uncertain that Defendants cannot reasonably respond. “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Errors and confusion created by “the inept pleader” are to be forgiven if the pleading contains sufficient facts entitling plaintiff to relief. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) As such, the uncertainty demurrer is OVERRULED.

1st C/A (negligence) - OVERRULE

The first cause of action alleges Defendant breached the duty to exercise reasonable care in the ownership, management, and control of the premises, which resulted in a bed bug infestation that injured Plaintiffs. (See Compl. ¶¶ 53-61.)

To state a claim for negligence, plaintiff must allege that: (i) the defendant owed a duty to the plaintiff, (ii) that the defendant breached that duty, and (iii) that the breach proximately caused the plaintiff’s injuries. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159.) The existence

of duty is a question of law for the courts. (Isaacs v. Huntington Mem. Hosp. (1985) 38 Cal.3d 112, 124.)

Notably, the doctrine of negligence per se creates a presumption of negligence arising from violation of a statute. (See Evid. Code, § 669.) “‘[T]he doctrine of negligence per se is not a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence’” if the injury resulted from an occurrence that the regulation was designed to prevent, and if the person injured was within the class for whose protection the regulation was adopted. (Terner v. Seterus, Inc. (2018) 27 Cal.App.5th 516, 534, citing Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1353, fn. 2; Randi W. v. Muroc Joint Unified Sch. Dist. (1997) 14 Cal.4th 1066, 1087.)

Here, the allegations regarding violations of Health and Safey Code provisions create a presumption of duty and breach. Health and Safety Code Section 17920.3(12) was adopted to protect individuals such as Plaintiffs. The Complaint also sufficiently pleads ultimate facts showing, breach, causation, and damages. (Compl. ¶¶ 29, 32, 33, 39, 42, 45-46).

As such, the demurrer is OVERRULED as to the first cause of action.

2nd C/A (private nuisance) - SUSTAIN

The second cause of action alleges Defendant created a private nuisance by knowingly and intentionally failing to abate the bed bug infestation in Plaintiffs’ hotel room. (Compl. ¶ 66.)

“[P]rivate nuisance is a civil wrong based on disturbance of rights in land.... [T]o proceed on a private nuisance theory the plaintiff must prove an injury specifically referable to the use and enjoyment of his or her land.” (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262, emphasis added.)

As Defendant argues, Plaintiff fails to allege a legally cognizable property interest. Hotel guests have no interest

in realty to support a claim for nuisance. (See, e.g., Erwin v. City of San Diego (1952) 112 Cal.App.2d 213, 217 [holding “[t]he guests in the hotel are not tenants and have no interest in the realty; they are mere licensees and the control of the rooms, halls and lobbies remains in the proprietor”].)

Therefore, the Complaint does not plead facts to support the private nuisance claim, and the court SUSTAINS the demurrer to the second cause of action.

3rd C/A (public nuisance)—SUSTAIN

The third cause of action alleges Defendant created a public nuisance by failing to abate the bed bug infestation at the Ayres Hotel Orange. (See Compl. ¶¶ 2, 89.)

“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.’” (Melton v. Boustred, 183 Cal.App.4th at p. 542; Civ. Code, § 3479.) Civil Code Section 3480 defines public nuisance as “[a nuisance] 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.” Any nuisance that does not fall within the definition of Section 3480 is private. (Civ. Code, § 3481.)

To plead a cause of action for public nuisance, Plaintiff must allege the following: (i) Defendant, by acting or failing to act, created a condition or permitted a condition to exist that was harmful to health, 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; (ii) the condition affected a substantial number of people at the same time; (iii) an ordinary person would be reasonably annoyed or disturbed by the condition; (iv) the seriousness of the harm outweighs the social utility of defendant’s conduct; (v) plaintiff did not consent that conduct; (vi) plaintiff suffered harm that was different from the type of harm suffered by the general public; and (vii) defendant’s conduct was a substantial factor in causing

plaintiff’s harm. (See CACI 2020.) For a private party to maintain an action based on public nuisance, “[t]he damage suffered must be different in kind and not merely in degree from that suffered by other members of the public.” (Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1040 [citations omitted].)

Here, the Complaint pleads some elements but fails to allege facts showing that the condition affected a substantial number of people at the same time. Plaintiff alleges in only conclusory terms that the infestation affects the “public at large.” (See, e.g., Compl. ¶ 93.) This is a mere restatement of the element. Plaintiff’s other allegations that prior hotel guests “over years” had written reviews about the hotel and rooms contaminated with bed bugs do not show a substantial number of people were simultaneously affected by the infestation. (See Compl. ¶ 32.) The Complaint also fails to allege that plaintiff suffered harm that was different from the type of harm suffered by the general public.

Therefore, the Complaint does not plead facts to support the public nuisance claim, and the court SUSTAINS the demurrer to the third cause of action.

4th C/A (IIED) - SUSTAIN

The fourth cause of action alleges that Defendant’s conduct intentionally and willfully failing to put Plaintiffs on notice of the bed bug infestation and failure to eliminate or remediate the infestation caused Plaintiffs to suffer emotional distress. (See Compl., ¶¶ 113, 129-131.)

To state a claim for intentional infliction of emotional distress, plaintiff must allege: (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. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050- 1051.) “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.’” (Ibid.)

“[S]evere emotional distress,” for purposes of establishing a claim for intentional infliction of emotional distress, means “emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1246. See also, Girard v. Ball (1981) 125 Cal.App.3d 772, 787-788.) [that a plaintiff lost sleep, had symptoms of anxiety, and suffered from nervousness, but sought no medical treatment, was insufficient to support an IIED claim].)

“In order to avoid a demurrer, the plaintiff must allege with ‘great[] specificity’ the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160-161.) The Complaint must also allege specific facts to establish severe emotional distress, such as the intensity and duration of his emotional distress. (Michaelian v. State Comp. Ins. Fund (1996) 50 Cal.App.4th 1093, 1114; Fletcher v. Western Life Ins. Co. (1970) 10 Cal.App.3d 376, 397.)

Here, the Complaint alleges that prior hotel guests had written reviews about the Subject Property on a third-party review platform. (See Compl., ¶¶ 32, 123.) Such is insufficient to show Defendant had actual or constructive notice of the alleged infestation. The Complaint alleges Defendants failed to regularly inspect and maintain the hotel rooms with reasonable care. (Compl., ¶ 39.) This falls short of extreme and outrageous conduct that exceeds the bounds of that usually tolerated in a civilized community. Lastly, the Complaint does not allege emotional distress of such substantial quality or enduring quality to support the claim for intentional infliction of emotional distress.

Therefore, the Complaint does not plead facts to support the IIED claim, and the court SUSTAINS the demurrer to the fourth cause of action.

5th C/A (breach of contract) - OVERRULE

The fifth cause of action alleges Defendant breached the covenant of good faith and fair dealing implied in the parties’ agreement, or the agreement to which Plaintiffs were third-party beneficiaries, relating to Plaintiffs’ stay at the hotel. (Compl., ¶¶ 142-145.)

“There is implied in every contract a covenant by each party not to do anything which will deprive the other parties thereto of the benefits of the contract.... This covenant not only imposes upon each contracting party the duty to refrain from doing anything which would render performance of the contract impossible by any act of his own, but also the duty to do everything that the contract presupposes that he will do to accomplish its purpose.” (Harm v. Frasher (1960) 181 Cal.App.2d 405, 417.) “It is universally recognized the scope of conduct prohibited by the covenant of good faith is circumscribed by the purposes and express terms of the contract.” (Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th 342, 373 [citing other cases].)

The elements of a claim for breach of the implied covenant of good faith and fair dealing are: (i) the existence of a contract; (ii) the defendant’s actions pursuant to the contract that destroys or injures the rights of the plaintiff to receive the benefits of the contract; and (iii) resulting damages. (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 36.)

Third-party beneficiary doctrine provides that: “A contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescinded.” (Civ. Code, § 1559.) “To show the contracting parties intended to benefit [a third party], [that] third party must show that, under the express terms of the contract at issue and any other relevant circumstances under which the contract was made, (1) ‘the third party would in fact benefit from the contract’; (2) ‘a motivating purpose of the contracting parties was to provide a benefit to the third party’; and (3) permitting the third party to enforce the

contract ‘is consistent with the objectives of the contract and the reasonable expectations of the contracting parties.’” (Ford Motor Warranty Cases (2023) 89 Cal.App.5th 1324, 1337, affirmed July 3, 2025, citing Goonewardene v. ADP, LLC (2019) 6 Cal.5th 817, 830.)

Here, the Complaint alleges facts showing Plaintiffs’ standing as third-party beneficiaries to the contract relating to Plaintiffs’ hotel stay, Defendant’s breach of the implied covenant to provide a habitable hotel room, and damages. (See Compl. ¶¶ 14, 26, 27, 148-151, Exh. A.)

As such, the court OVERRULES the demurrer to the fifth cause of action.

6th C/A (fraudulent concealment) - SUSTAIN

The sixth cause of action alleges Defendant fraudulently concealed a bed bug infestation in Plaintiffs’ hotel room. (Compl., ¶¶ 155-159.)

The elements of a cause of action for fraudulent concealment are: (i) concealment or suppression of a material fact; (ii) by a defendant with a duty to disclose the fact to the plaintiff; (iii) defendant’s intent to defraud plaintiff by intentionally concealing or suppressing the fact; (iv) plaintiff was unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact; and (v) as a result, the plaintiff sustained damage. (Hambrick v. Healthcare Partners Medical Group, Inc. (2015) 238 Cal.App.4th 124, 162; see also Civ. Code, § 1573.)

“If the duty allegedly arose by virtue of the parties’ relationship and defendant’s exclusive knowledge or access to certain facts, . . . the complaint must also include specific allegations establishing all the required elements, including (1) the content of the omitted facts, (2) defendant’s awareness of the materiality of those facts, (3) the inaccessibility of the facts to plaintiff, (4) the general point at which the omitted facts should or could have been revealed, and (5) justifiable and actual reliance, either through action or forbearance, based on the defendant's omission. ‘[M]ere conclusionary allegations that the

omissions were intentional and for the purpose of defrauding and deceiving plaintiff[] . . . are insufficient for the foregoing purposes.’ (Goodman [v. Kennedy (1976) 18 Cal.3d 335,] 347.)” (Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1, 43-44.)

Here, the Complaint does not allege specific facts sufficient to establish that Defendant was aware that Plaintiffs’ hotel room was infested with bed bugs to begin with or that Defendant intentionally concealed that fact. The Complaint alleges that prior hotel guests had written reviews about the hotel premises on a third-party review platform (see Compl., ¶¶ 32, 123) and that Defendants failed to regularly inspect or maintain the room (Compl., ¶ 39). Such is insufficient to show Defendant had actual or constructive notice of a bed bug infestation in Plaintiffs’ hotel room, such that Defendant had exclusive knowledge or access to this fact.

Thus, the court SUSTAINS the demurrer to the sixth cause of action.

Should Plaintiffs desire to file an amended complaint that addresses the issues in this ruling, Plaintiffs shall file and serve the amended complaint within 20 days.

Defendant to give notice.

2. Motion to Strike

The court DENIES in part, and GRANTS in part, Defendant AYRES-ORANGE, L.P.’s motion to strike certain portions of the Complaint of Plaintiffs RICHARD HERNANDEZ and RUBI HERNANDEZ, by and through her guardian ad litem RICHARD HERNANDEZ. The court grants 20 days leave to amend to correct the deficiencies.

Re Punitive Damages

Defendant moves to strike punitive damages allegations in paragraphs 45, 109, 134-136, and Prayer at paragraph 168.

The motion is DENIED as MOOT as to paragraphs 109 and 134-136, given the concurrent ruling sustaining the demurrer to the third and fourth causes of action.

To plead a claim to recover punitive damages, a plaintiff must allege facts supporting malice, oppression, or fraud. (Civ. Code, § 3294(a).) To plead a claim to recover punitive damages against an employer based on the acts of an employee, a plaintiff must plead facts showing the employer’s officer, director, or managing agent “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 the damages are awarded or was personally guilty of oppression, fraud or malice. (Civ. Code, § 3294(b).)

Here, the court finds the Complaint alleges insufficient facts to support the claim for punitive damages.

Attorney’s Fees

Defendant also moves to strike a prayer for attorney’s fees set forth in paragraphs 110, 151, and the Prayer for Relief at paragraph 167.

The motion is DENIED as MOOT as to paragraph 110, given the concurrent ruling sustaining the demurrer to the third cause of action.

A prevailing party may recover attorney’s fees only if provided for by contract or statute. (Code Civ. Proc., § 1033.5.) The Complaint alleges no facts supporting a contractual right to recover attorney’s fees.

As such, the motion is GRANTED as to paragraph 151, and the Prayer for Relief at paragraph 167.

Injunctive and Equitable Relief

Defendant also moves to strike a prayer for injunctive and/or equitable relief set forth in paragraphs 99 and the Prayer for Relief at paragraph 169.

The motion is DENIED as MOOT as to paragraph 99, given the concurrent ruling sustaining the demurrer to the third cause of action.

To seek injunctive relief, a plaintiff must plead: (i) a tort or other wrongful acts; and (ii) grounds for equitable relief of this kind (i.e., inadequacy of remedy at law). (Connerly v. Schwartzenneger (2007) 146 Cal.App.4th 739, 748-749.)

Here, the Complaint alleges no facts supporting equitable relief.

As such, the motion is GRANTED as to the Prayer for Relief at paragraph 169.

Miscellaneous Allegations

Defendant also moves to strike allegations in paragraphs 3, 4, 21, 22, 23, 32, 47, 48, 56, 57, 58, 63, 86, 123, 149, 157, 156, and 166 of the Complaint.

This request constitutes an improper procedural line-item veto. (See PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683.)

As such, the motion is DENIED as to these miscellaneous requests.

Should Plaintiffs desire to file an amended complaint that addresses the issues in these ruling, Plaintiffs shall file and serve the amended complaint within 15 days of service of the notice of ruling.

If no amended complaint is timely filed and served, Defendant SHALL file an answer to the remaining portions of the Complaint within 30 days thereafter (i.e., after the due date for the amended pleading).

Defendant to give notice.

41