Serrano vs. Dana Point Marina Inn

Here, Plaintiff alleges that Defendants failed to appropriately inspect its hotel rooms for signs of bed bug infestation and failed to warn Plaintiff of the risk of bed bugs being present. Plaintiff alleges that Defendants’ failure was “intentional, deliberate, and

reckless” and resulted in Plaintiff being touched by the infestation of bed bugs.

Plaintiff does not allege that Defendant intentionally exposed Plaintiff to bed bugs. Plaintiff does not allege that any Defendant or agent of any Defendant physically touched her. This is not sufficient to state a cause of action because no allegation of harmful contact by any person with Defendant. Plaintiff does not allege that any exposure to bed bugs was intended by any Defendant. Thus, Plaintiff does not sufficiently allege facts constituting the elements of battery.

COA 4: Intentional Infliction of Emotional Distress

The elements of a claim for intentional infliction of emotional distress are extreme and outrageous conduct by the defendant with the intent of causing, or a reckless disregard for the probability of causing emotional distress; the plaintiff’s suffering severe or extreme emotional distress; and actual and proximate causation of emotional distress by the defendant’s outrageous conduct. Potter v. Firestone Tire & Rubber Co (1993) 6 Cal.4th 965. “Extreme and outrageous conduct is conduct that is so extreme as to exceed all bounds of that usually tolerated in a civilized community ... and must be of a nature which is especially calculated to cause, and does cause, mental distress.” (Chang v. Lederman (2009) 172 Cal.App.4th 67, 86-87 [internal quotation marks and citations omitted].)

Plaintiffs’ cause of action is based upon allegations that Defendants willfully permitted a bedbug infestation of their premises and failed to warn Plaintiff of the danger. This is not sufficient to establish outrageous conduct directed at Plaintiffs. There is no allegation in the Complaint, nor can it be construed from the allegations of the Complaint that any Defendant targeted Plaintiff with exposure to bed bugs. At most, the allegations of the Complaint describe negligent conduct and fails to approach the level of despicable and

outrageous conduct sufficient to state a cause of action for IIED.

COA 5: Fraudulent Concealment

“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.)

Claims of fraud by concealment must be pleaded with particularity. (Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1, 43 [“California courts apply the same specificity standard to evaluate the factual underpinnings of a fraudulent concealment claim at the pleading stage, even though the focus of inquiry shifts to the unique elements of the claim.”].)

Plaintiff has failed to allege this cause of action with the required degree of specificity. Plaintiff fails to allege specific facts establishing that Defendant had a duty to disclose a bed bug infestation to Plaintiffs and that they intentionally concealed this fact from Plaintiffs. Furthermore, the Complaint fails to allege specific facts demonstrating Defendant had exclusive knowledge of the alleged infestation or that Defendant took steps to actively conceal the existence of the infestation.

COA 6: Private Nuisance

Plaintiffs’ private nuisance cause of action is premised upon allegations that they were guests at Defendants’ hotel. However, in order to allege a cause of action for private

nuisance, a plaintiff must allege either a possessory interest in the land affected or hold a nonpossessory estate adversely affected by the alleged nuisance. (See Rest. 2d Torts §821E.)

A hotel guest does not have such a property right, rather, a hotel guest is treated as a licensee on the property, and this is not enough under California law, to confer standing to maintain an action for private nuisance. (See Venuto v. Owens-Corning Fiberglass Corp. (1971) 22 Cal.App.3d 116, 125 [“Although ‘any interest sufficient to be dignified as a property right’ will support an action based on a private nuisance, and this includes within its purview a tenancy for a term, such right does not inure in favor of a licensee, lodger or employee.”])

COA 7: Public Nuisance

Civ. Code § 3480 defines a public nuisance as “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.”

For a private plaintiff to have standing to pursue a claim for public nuisance, the complaint must allege the existence of a public nuisance and also that the plaintiff has sustained a special injury distinct from the more general public harm. (Rincon Band of luiseno Mission Indians etc. v. Flynt (2021) 70 Cal.App.5th 1059, 1102.)

Here, Plaintiff fails to allege the existence of a condition that affects a considerable number of persons. The alleged bedbug infestation is localized to a private hotel room.

To the extent that a public nuisance is alleged, Plaintiffs fails to differentiate their alleged injury suffered as a result of the infestation as a special injury.

COA 8: Breach of Contract

“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. ¶¶ 135-137.) She further alleges that Defendants breached the contract by failing to provide a habitable room for lodging. (Compl. ¶ 138.)

Plaintiff has alleged the existence of a written contract and has alleged the legal effect of the contract, which is sufficient to overcome a demurrer. Thus, the Demurrer to the eighth cause of action is OVERRULED.

Motion to Strike

In light of the foregoing ruling on the demurrer, the motion to strike is DENIED as MOOT.

Moving Defendant shall provide notice of this ruling.

9 De La Torre vs. Tippett Moorhead & Haden

2025-01501827 1. Motion to Strike Complaint 2. Demurrer to Amended Complaint

DEMURRER

Defendants Tippett Moorhead & Haden, Michael Moorhead and Daniel Church’s