Demurrer to Complaint; Motion to Strike
battery cause of action. The Demurrer to the first cause of action is SUSTAINED with 20 days leave to amend.
Fourth Cause of Action for IIED Apple Defendants argue that Plaintiff has failed to set forth any facts which indicate the nature or extent of any mental suffering incurred as a result of Apple Defendants’ purported conduct. Furthermore, they argue that Plaintiff has failed to provide any facts evidencing that Apple Defendants’ actions or omissions were directed specifically at Plaintiff.
“The elements of the tort of intentional infliction of emotional distress are: ‘ “ ‘(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. . . . .’ ” ’ ” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.)
Plaintiff alleges that he has suffered physical and psychological injury as a result of Defendants’ breaches, including severe embarrassment, annoyance, discomfort, pain, apprehension, tension, and anxiety. (Compl. ¶¶ 76, 78.) At this stage, these allegations are sufficient to support the element of severe or extreme emotional distress.
While Plaintiff does not allege that Apple Defendants’ actions were directed specifically at him, an intentional infliction of emotional distress cause of action may be supported by either conduct directed at the plaintiff or which occurs in the presence of a plaintiff of whom the defendant is aware. (Potter, 6 Cal.4th at p. 1002.) Thus, despite the lack of conduct directed at Plaintiff specifically, an IIED claim may arise where Apple Defendants were aware that guests such as Plaintiff would be present at the property. Moreover, as Apple Defendants concede, the question of whether conduct is sufficiently outrageous is ordinarily a question of fact not suitable for resolution by demurrer. Therefore, the
Demurrer to the fourth cause of action is OVERRULED.
Fifth Cause of Action for Fraudulent Concealment Apple Defendants argue that Plaintiff lacks the requisite specificity to maintain this cause of action as Plaintiff has not alleged the names of the persons who purportedly made the allegedly fraudulent representations, what their authority is to speak, to whom they spoke, what they said or wrote, and when it was said or written. They further argue that Plaintiff has not alleged the existence of a transaction between them.
“The elements of a claim for fraudulent concealment require a plaintiff to show that: ‘(1) the defendant . . . concealed or suppressed a material fact, (2) the defendant [was] under a duty to disclose the fact to the plaintiff, (3) the defendant . . . intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the 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 (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.’ ” (Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1130.)
Looking for case law or statutes not cited here? Search published authorities
Examples: “Why did the court rule this way?” · “What were the procedural grounds?” · “Is appearance required?”
Plaintiff alleges that Apple Defendants, as the owners, operators, and managers of the hotel, knew about the infestation in the room assigned to Plaintiff, as evidenced by online posts of similar incidents from prior guests and invitees, and failed to warn Plaintiff regarding the dangers of the infestation. (Compl. ¶¶ 99-101.) Plaintiff alleges that the failure to warn is a material misrepresentation by omission by Apple Defendants and was carried out by front desk personnel. (Compl. ¶¶ 101, 105.)
These allegations establish the existence of a transaction between Plaintiff and Apple Defendants: hotel patron and guest. Further, while fraud causes of action must be pled with specificity, “[l]ess specificity should be required of fraud claims ‘when “it appears from the nature of the allegations that the
defendant must necessarily possess full information concerning the facts of the controversy,” [citation]; “[e]ven under the strict rules of common law pleading, one of the canons was that less particularity is required when the facts lie more in the knowledge of the opposite party . . . .” ’ ” (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384.) Here, information regarding the employees working the front desk when Plaintiff checked in lies more within the knowledge of Apple Defendants and the Court therefore finds that the cause of action is sufficiently pled. The Demurrer to the fraud cause of action is OVERRULED.
Sixth Cause of Action and Seventh Cause of Action for Private and Public Nuisance Apple Defendants argue this cause of action is superfluous because it is based on the same facts as Plaintiff’s negligence cause of action.
“Where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim.” (El Escorial Owners’ Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349; see also Van Zyl v. Spiegelberg (1969) 2 Cal.App.3d 367, 372-373.)
Here, Plaintiff’s nuisance causes of action are based on the same conduct as alleged in the negligence cause of action—Apple Defendants’ failure to advise Plaintiff of the infestation and negligence in allowing unsanitary and uninhabitable conditions to exist at the property. Thus, Plaintiff’s nuisance causes of action are “merely a clone of the [negligence] cause of action using a different label.” (El Escorial, 154 Cal.App.4th at p.1349.) However, Apple Defendants cite no authority showing that a demurrer should be sustained when a nuisance cause of action is duplicative of a negligence cause of action. Thus, the Demurrer to the sixth and seventh causes of action is OVERRULED. (See Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 890 [a cause of action being duplicative “is not a ground on which a demurrer may be sustained”].)
Eighth Cause of Action for Breach of Contract Apple Defendants argue that Complaint does not quote any terms of the purported contract upon which recovery is sought nor does it attach a copy or incorporate it by reference.
“A cause of action for breach of contract requires pleading of a contract, plaintiff’s performance or excuse for failure to perform, defendant’s breach and damage to plaintiff resulting therefrom.” (McKell v. Washington Mut., Inc. (2006) 142 Cal.App.4th 1457, 1489.) The “failure to attach or to set out verbatim the terms of the contract [is] not fatal to [a] breach of contract cause of action.” (Miles v. Deutsche Bank Nat’l Trust Co. (2015) 236 Cal.App.4th 394, 402.) Rather, “ ‘a plaintiff may plead the legal effect of the contract rather than its precise language.’ ” (Ibid., citing Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 199.)
Plaintiff alleges that he entered into a written contract for the rent of his hotel room with Defendants and paid the rental price of the room. (Compl. ¶¶ 137-138.) He further alleges that Defendants breached the contract by failing to provide a habitable room for lodging. (Compl. ¶ 140.)
Plaintiff has alleged the existence of a written contract and the failure to attach a copy or set forth the terms verbatim is not fatal. He has alleged the legal effect of that contract and facts showing breach. Thus, the Demurrer to the eighth cause of action is OVERRULED.
Uncertainty Apple Defendants argue the causes of action are fatally vague and uncertain. Demurrers for uncertainty “are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) The Court finds that the Complaint is not incomprehensible and the allegations are such that Apple Defendants can reasonably respond. Thus, the Demurrer based on uncertainty is OVERRULED.
Motion to Strike Apple Defendants argue the punitive damages claim should be stricken due to lack of specificity. Because the Court has held that the fraudulent concealment cause of action is allowed to stand, the Motion to Strike punitive damages is DENIED.
However, Apple Defendants are correct that Plaintiff has not identified any basis for his claim for attorney fees and Plaintiff has not addressed this deficiency in his opposition. Thus, the Motion to Strike the claim for attorney fees is GRANTED with 20 days leave to amend.
The Case Management Conference is continued to August 13, 2026 at 1:30 p.m.
Moving party to give notice. 103 Andrews vs. Thompson, 23-01211689 Off-calendar. 104 Lee vs. Kingsbury, 25-01472404 Off-calendar. 105 Simmons vs. Alter Domus, Inc., 24-01445636 Motion to Compel Deposition Defendants Alter Domus, Inc. and Chris San (collectively “Defendants”) move the Court for an order compelling Plaintiff Nancy Simmons (“Simmons” or “Plaintiff”) to attend an oral deposition. Defendants seek an order awarding monetary sanctions against Plaintiff in the total amount of $10,272.05 for attorneys’ fees and costs (including costs of court reporters).
Here, Plaintiff admits that her deposition has been scheduled three times and she has not appeared. However, she asks for leniency due to family circumstances involving becoming the caretaker of her son who was in an accident.
To that end, lead counsel to appear to meet and confer as to available dates for Plaintiff’s deposition.
Plaintiff to pay $2,001.05 for the Court Reporter’s costs.
To the extent Plaintiff fails to appear for her agreed upon deposition date, the Court reserves the right to impose the remaining $8,200 in requested attorney’s fees.
The Court orders the deposition to occur within the next 30 days and the sanctions for the Court Reporter’s costs to be paid within the next 30 days. If the deposition does not occur on a mutually agreeable date, moving parties are granted leave to re-file a motion for sanctions seeking the remaining $8,200 at issue here.
Other Discovery Motions Defendants Alter Domus, Inc. and Chris San (collectively “Defendants”) move the Court for an order compelling Plaintiff Nancy Simmons to respond to the following Defendants Requests for Production, Set One (“RFPs”), without objection. Defendants seek an order awarding monetary sanctions against Plaintiff in the amount of $5,449.
Defendants Alter Domus, Inc. and Chris San move the Court for an order compelling Plaintiff Nancy Simmons to respond to the following interrogatories propounded by Defendants, without objection: 1. Special Interrogatories, Set One. Defendants seek an order awarding monetary sanctions against Plaintiff in the amount of $5,295.
Defendants Alter Domus, Inc. and Chris San move the Court for an order compelling Plaintiff Nancy Simmons to respond to the following form interrogatories propounded by Defendants, without objection: 1.
2. Form Interrogatories - Employment, Set One; Form Interrogatories - General, Set One. Defendants seek an order awarding monetary sanctions against Plaintiff in the amount of $4,534.
It appears the Motions are moot. Plaintiff declares under penalty of perjury, that, “Concurrent with the filing of this opposition, I have worked with my counsel to prepare and verify complete responses to” the discovery at issue herein, “without objections”. (See Declaration(s) of Plaintiff Simmons.)