Case Name:??? Janna Thomas v. ESA Management, Inc., et al.
Case No.:??????? 2014-1-CV-263007
Motion by Defendant ESA Management, LLC for Summary Adjudication of Plaintiff Janna Thomas?s Fourth Cause of Action for Intentional Infliction of Emotional Distress, Request for Property Damages in Excess of $1,000, and Request for Punitive Damages
Factual and Procedural Background
This is a negligence and premises liability action. According to the Complaint, Defendant ESA Management, LLC (?ESA?) owns and manages a hotel located at 1000 Hillview Ct., Milpitas, California (?Subject Property?). (Complaint, ?? 2, 13, 16-17, 25-26.) In or before April 2012, ESA became aware of various problems with the Subject Property, including an infestation of bed bugs. (Id., at ? 31.) The infestation was allegedly caused by ESA?s failure to regularly inspect and maintain the rooms and common areas of the hotel with reasonable care. (Id., at ? 34.)
In April 2012, plaintiff Janna Thomas (?Plaintiff?) entered into a rental agreement with ESA to stay as a guest at the hotel. (Complaint, ?? 2, 13, 26.) Plaintiff alleges that ESA failed to disclose or warn her of the bed bug infestation before she rented a room even though it had actual and constructive notice of the condition. (Id., at ?? 3-4.) ESA allegedly concealed the beg bug infestation from Plaintiff in order to induce her into renting the hotel room. (Id., at ?? 4, 12.) ?Plaintiff noticed the bed bug infestation a couple of hours after staying as a guest at the [hotel]? and ?immediately reported these findings to management ?.? (Id., ?? 27-28, 42, 44.) Nonetheless, ESA failed to eradicate and/or remedy the bed bug infestation. (Id., at ?? 29, 33, 43-44.) As a result of the bed bug infestation, Plaintiff suffered a severe skin rash, bug bites, property damage to her clothing and personal belongings, sleeplessness, anxiety, and emotional distress. (Id., at ?? 6-7, 32.)
Based on the foregoing, Plaintiff filed the complaint against several defendants, including ESA, alleging claims for: (1) breach of implied warranty of habitability; (2) negligence; (3) nuisance; (4) intentional infliction of emotional distress (?IIED?); (5) negligent infliction of emotional distress; (6) breach of contract; and (7) breach of covenant of quiet enjoyment.[1]
On April 29, 2016, ESA filed the instant motion for summary adjudication. Plaintiff filed papers in opposition to the motion on July 14, 2016. This matter was originally set for hearing on July 28, 2016. The hearing was continued to September 29, 2016, in order to allow Plaintiff the opportunity to conduct additional discovery.
Discussion
??????????? ESA moves for summary adjudication of the fourth cause of action for IIED, the request for property damages in excess of $1,000, and the request for punitive damages.
- Legal Standard for Motions for Summary Judgment and/or Summary Adjudication
The pleadings limit the issues presented for summary judgment and/or summary adjudication, and such a motion cannot be granted or denied on issues not raised by the pleadings. (Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73 [?the pleadings determine the scope of relevant issues on a summary judgment motion?]; Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663.) A defendant seeking summary judgment or adjudication ?must show that at least one element of the plaintiff?s cause of action cannot be established, or that there is a complete defense to the cause of action. ?? ?The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.? (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; see also Code Civ. Proc., ? 437c, subd. (p)(2).)???There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.?? (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272, internal citations omitted; see also Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120, 1132; see also Intrieri v. Super. Ct. (2004) 117 Cal.App.4th 72, 82.)
The tried and true way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence negating, as a matter of law, an essential element of the plaintiff?s claim. (Guz v. Bechtel Nat?l, Inc. (2000) 24 Cal.4th 317, 334, fn. 7 [under California?s traditional rules, courts must determine with respect to each cause of action whether the defendant seeking summary judgment has presented affirmative evidence conclusively negating a necessary element of the plaintiff?s case]; see also Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597 [a cause of action cannot be established if the undisputed facts presented by the defendant prove the contrary of the plaintiff?s allegations as a matter of law].)
The defendant may also demonstrate that an essential element of the plaintiff?s claim cannot be established by ?present[ing] evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence-as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.? (Aguilar v. Atlantic Richfield Co. (?Aguilar?) (2001) 25 Cal.4th 826, 854-855; see also Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2015) ? 10:242, [?Such evidence usually consists of admissions by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action.?].)
The final way in which defendants can satisfy their initial burden of proof on summary judgment is to show a complete defense to the plaintiff?s cause of action. (See Aguilar, supra, 25 Cal.4th at p. 849.)?For example, defendants can present declarations or other admissible evidence showing that the plaintiff?s claim has been released or is barred by the statute of limitations.
For purposes of establishing their respective burdens, the parties involved in a motion for summary judgment or adjudication must present admissible evidence. (See Saporta v. Barbagelata (1963) 220 Cal.App.2d 463, 468.) The motion may not be granted by the court based on inferences reasonably deducible from the papers submitted, if such inferences are contradicted by other inferences which raise a triable issue of fact. (Hepp v. Lockheed-California Co. (?Hepp?) (1978) 86 Cal.App.3d 714, 717-718.) Additionally, in ruling on the motion, a court cannot weigh said evidence or deny summary judgment or adjudication on the ground that any particular evidence lacks credibility. (See Melorich Builders v. Super. Ct. (1984) 160 Cal.App.3d 931, 935; see also Lerner v. Super. Ct. (1977) 70 Cal.App.3d 656, 660.) As summary judgment ?is a drastic remedy eliminating trial,? the court must liberally construe evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party. (See Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389; see also Hepp, supra, 86 Cal.App.3d at p. 717.) ??? ??
- Fourth Cause of Action for IIED
ESA argues that Plaintiff?s claim for IIED fails because Plaintiff has not produced evidence of ?specific, intentional? conduct on its behalf; evidence that any of its conduct related to bud bugs was improper, directed primarily at her, calculated to cause her severe emotional distress, or done with knowledge of her presence; evidence that there was a substantial certainty that she would suffer severe emotional distress; or evidence showing that it knew of the bed bugs prior to her report of receiving bites. (Def. Mem. Ps. & As., pp. 4-5.) ESA also asserts that there is no evidence that Plaintiff suffered severe emotional distress because she testified at her deposition that she only suffers from insomnia and she has not attended any mental health sessions as a result of the incident. Finally, ESA contends that there is evidence showing that it was unaware of the bed bug infestation prior to Plaintiff?s May 14, 2012 report and it took immediate and appropriate action. Specifically, ESA states that Plaintiff?s report of bed bugs on May 14, 2012, was the first report of bed bugs during the relevant time frame; prior to the report, the rooms were randomly and regularly inspected by Orkin; after receiving the report, its employees followed its policy for handling reports of bed bugs.
To the extent ESA?s arguments are based on its assertion that Plaintiff failed to produce or otherwise lacks evidence to support her claim, its arguments lack merit. It is not enough to merely state that Plaintiff does not possess or has not produced evidence in support of her allegations. Rather, ESA must also show that such evidence cannot reasonably be obtained by Plaintiff. (Aguilar, supra, 25 Cal.4th at pp. 854?55 [?Summary judgment law in this state, however, continues to require a defendant moving for summary judgment to present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. ? For the defendant must ?support[]? the ?motion? with evidence including ?affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice? must or may ?be taken.? ?].) This is typically done by presenting evidence that the Plaintiff has been served with comprehensive and extensive discovery and, in response to the discovery requests, the plaintiff tacitly concedes that she has discovered nothing to support an essential element of the cause of action. ESA does not present any evidence establishing that it served Plaintiff with comprehensive and extensive discovery requests or that Plaintiff has otherwise admitted that she will be unable to obtain evidence to support her IIED claim.
Next, ESA?s argument that Plaintiff did not suffer emotional distress because she testified that she only suffers from insomnia, which she treats with medication, and she has not attended any mental health sessions as a result of the incident, is not well-taken. ESA cites no legal authority providing that the Court can determine as a matter of law that symptoms of insomnia, necessitating medication, cannot constitute severe emotional distress. Similarly, ESA cites no legal authority providing that Plaintiff must attend mental health sessions in order to substantiate her claim of severe emotional distress. Consequently, ESA?s argument lacks merit. (See Badie v. Bank of America? (?Badie?) (1998) 67 Cal.App.4th 779, 784-785 [?When [a party] fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.?]; see also Schaeffer Land Trust v. San Jose City Council (?Schaeffer?) (1989) 215 Cal.App.3d 612, 619, fn. 2 [?[A] point which is merely suggested by a party?s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.?].)
With respect to ESA?s final argument?that there is affirmative evidence demonstrating that it did not know of the bed bugs prior to Plaintiff?s May 14, 2012 report and it took appropriate action to remedy the situation?the Court finds that ESA?s evidence is sufficient to meet its initial burden. ?The tort of intentional infliction of emotional distress is comprised of three elements: (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 suffered severe or extreme emotional distress; and (3) the plaintiff?s injuries were actually and proximately caused by the defendant?s outrageous conduct.? (Cochran v. Cochran (?Cochran?) (1998) 65 Cal.App.4th 488, 494; see also Ross v. Creel Printing & Publishing Co., Inc. (2002) 100 Cal.App.4th 736, 744-745.) ESA?s argument goes to the first element?whether it intentionally caused, or acted with reckless disregard of the probability of causing, Plaintiff emotional distress. Here, ESA presents evidence establishing that: Plaintiff stayed in Room 346 at the time of her alleged exposure to bed bugs; its cleaning staff thoroughly cleans each room and inspects for pests at regular intervals; it retains Orkin, a pest control company, to perform monthly pest inspections of the Subject Property and to handle any pest issues that may arise; Orkin inspects about 20 to 30 vacant rooms during each inspection, though each guest room on the Subject Property is not included in each monthly inspection; according, to Orkin?s inspection records, the last time Room 346 was inspected before Plaintiff?s occupancy was December 29, 2011; Plaintiff checked into Room 346 on April 1, 2012; a May 14, 2012 incident report states that a ?guest reported they had been bitten by bed bugs in their guest room?; there is no record of any earlier report of bed bugs by Plaintiff or of any other report of bed bugs during the time that she stayed on the Subject Property; it maintains a detailed written protocol for handling reports of bed bugs on the Subject Property; its employees followed its policy for reports of bed bugs in response to Plaintiff?s report; and Plaintiff checked out on May 16, 2012. (UMF Nos. 3-9, 11-14.) This evidence adequately establishes that ESA did not intend to cause Plaintiff severe emotional distress or otherwise act with reckless disregard of the probability of causing Plaintiff severe emotional distress. Consequently, the Court finds that ESA meets its initial burden on summary adjudication with respect to the fourth cause of action.
Nonetheless, Plaintiff?s declaration submitted in opposition to the motion raises a triable issue of material fact as to whether ESA knew of the condition (i.e., the bed bug infestation) and failed to promptly correct it. Plaintiff declares that during her occupancy of the Subject Property she began to notice red marks on her body and she immediately notified management at the front desk, but nothing was done. (Thomas Dec., ? 3.) Thereafter, she began complaining on a daily basis to the front desk, but her complaints were ignored. (Thomas Dec., ? 4.) This evidence raises a triable issue of material fact as to whether ESA intentionally failed to respond to Plaintiff?s complaints and promptly remedy the bed bug infestation, or acted with reckless disregard for Plaintiff?s well-being by ignoring her complaints and failing to promptly correct the situation.
Accordingly, the motion for summary adjudication of the fourth cause of action is DENIED.
III.?????? Request for Property Damages in Excess of $1,000
??????????? ESA argues that Civil Code sections 1859 and 1860 limit an innkeeper?s liability and cap damages that may be recovered for personal property at $1,000 and $500, respectively. Based on the foregoing, ESA contends that the ?Court should grant summary adjudication as to any damages for property loss sought in excess of the applicable statutory limits.? (Def. Mem. Ps. & As., pp. 6-7.) In her complaint, Plaintiff seeks compensatory damages in an unspecified amount. (Complaint, Prayer, ? 1.)
A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (Code Civ. Proc., ? 437c, subd. (f)(1); see McClasky v. California State Auto. Ass?n (2010) 189 Cal.App.4th 947, 975 [?If a cause of action is not shown to be barred in its entirety, no order for summary judgment?or adjudication?can be entered.?].) Moreover, a party is not entitled to obtain summary adjudication on the issue of non-punitive damages without following the procedures outlined by Code of Civil Procedure section 437c, subdivision (t), which states that ?[n]otwithstanding subdivision (f), a party may move for summary adjudication of a legal issue or claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to this subdivision.??These procedures include submitting to the Court, prior to filing the subject motion for summary adjudication, a joint stipulation stating the issue or issues to be adjudicated along with supporting declarations from both parties.?(Code Civ. Proc., ? 437c, subd. (t)(1).) Within 15 days of the filing of the foregoing materials, the court must notify the parties whether the motion may be filed. (Code Civ. Proc., ? 437c,. subd. (t)(2).)
Here, ESA?s attempt to summarily adjudicate the request for personal property damages is procedurally deficient for multiple reasons. First, ESA?s argument does not dispose of the request for personal property damages in its entirety. Rather, ESA attempts to dispose of the request for personal property damages only to the extent the request seeks to recover damages in excess of $1,000. This is improper because the request for an award of personal property damages would remain and merely be capped at $1,000. Second, there is no indication that ESA followed any of the procedures set forth in Code of Civil Procedure section 437c, subdivision (t).?Consequently, ESA may not obtain summary adjudication of Plaintiff?s claim for personal property damages.
Accordingly, the motion for summary adjudication of the request for personal property damages is DENIED.?
- Request for Punitive Damages?
??????????? ESA argues, in a conclusory manner, that the Court should grant its motion for summary adjudication of Plaintiff?s request for punitive damages because the allegations asserted by Plaintiff in the complaint do not constitute oppression, fraud, or malice. Next, ESA asserts that the request for punitive damages fails because Plaintiff ?has produced no evidence that can support her request for exemplary damages.? (Def. Mem. Ps. & As., p. 8.) Finally, ESA contends that its conduct does not rise to the level of ?extreme and outrageous? or ?despicable? conduct, which would be necessary to show malice, because it took appropriate action to address the bed bug infestation once Plaintiff informed it of the problem on May 14, 2012.
To the extent ESA?s argument is based on the assertion that Plaintiff has not produced any evidence supporting her claim of punitive damages, its argument is not well-taken. As previously articulated, it is not enough for ESA to merely state that Plaintiff does not possess or has not produced evidence supporting her claim. (Aguilar, supra, 25 Cal.4th at pp. 854?55.) Rather, to prevail on its motion for summary adjudication based on a lack of evidence, ESA must show that Plaintiff cannot reasonably obtain evidence to support her claim. (Ibid.) ESA does not make such a showing.
Next, ESA?s conclusory argument that Plaintiff?s request for punitive damages fails because the allegations of the complaint do not constitute oppression, fraud, or malice is not well-taken. ESA does not cite to any specific allegations in the complaint or explain how those allegations are deficient. Since ESA fails to support its argument with citations to the record and reasoned argument, its assertion is deemed to be without merit. (See Badie, supra, 67 Cal.App.4th at pp. 784-785 [?When [a party] fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.?]; see also Schaeffer, supra, 215 Cal.App.3d at p. 619, fn. 2 [?[A] point which is merely suggested by a party?s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.?].)
Finally, while ESA presents sufficient evidence demonstrating that it did not act with malice, oppression, or fraud (see UMF Nos. 3-9, 11-14), Plaintiff raises a triable issue of material fact as to whether ESA?s conduct constitutes malice. Specifically, Plaintiff?s declaration sets forth evidence showing that ESA ignored her complaints and did not promptly take appropriate action to remedy the bed bug infestation when it was notified of the situation. (Thomas Dec., ?? 304.) A jury could reasonable infer from this evidence that ESA?s conduct would be looked down upon and despised by ordinary decent people, and demonstrates a willful and conscious disregard for Plaintiff?s health and well-being. (See Civ. Code, ? 3294, subd. (c)(1) [malice is defined as ?conduct which is 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?]; see also American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050 [despicable conduct is conduct ? ?so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people? ?].)
Accordingly, the motion for summary adjudication of the request for punitive damages is DENIED.
[1] ESA was substituted for Doe defendant 2 on April 8, 2015.