Tentative Ruling

Judge Pauline Maxwell
Department 6 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Ann Fox vs City of Santa Barbara
Case No: 18CV00502
Hearing Date: Wed Oct 23, 2019 9:30

Nature of Proceedings: Demurrer and Motion to Strike

TENTATIVE RULING: The demurrer to the negligence cause of action is overruled, and the demurrer to the intentional infliction of emotional distress cause of action is sustained, with leave to amend. The motion to strike the punitive damage claim against defendant Inn is sustained, with leave to amend. To the extent plaintiff wishes to avail herself of the opportunity to attempt to correct these pleading defects, the Court will grant her leave to file an amended pleading. Any such amended pleading must be filed on or before November 6, 2019.

Background: Plaintiff’s operative Second Amended Complaint (SAC) alleges causes of action against defendant Inn of the Spanish Gardens, LLC, erroneously sued as Spanish Garden Inn (Inn), for negligence and intentional infliction of emotional distress. Those causes of action and additional causes of action for assault, battery, false arrest, and violation of civil rights, are alleged against the City of Santa Barbara and the Santa Barbara Police Department.

Plaintiff alleges that she checked into Inn as a guest on January 29, 2017, specifically informing its representatives that she has an extreme sensitivity to environmental toxins, including chemical cleaners, mold, fumes from vehicle exhaust, gasoline, paints, and other airborne chemicals, which cause her to suffer adverse physical reactions. After a few days at the Inn, she noticed “something of a chemical nature” and notified the front desk. Although the fumes increased, Inn did not immediately address the issue, and wrote a note stating it would be handled eventually. The following evening, the fumes became unbearable for plaintiff at the same time her dog appeared to be having a seizure. As a result, she asked Inn’s parking attendant to bring her car from the garage, so that she could get away from the fumes. The attendant refused, and told plaintiff to calm down, and then called the police. Forced to get her car herself, when plaintiff then attempted to drive her car out of the garage, she was prevented from doing so by the police, who detained her, pulled their guns on her, physically assaulted her, and arrested her. Plaintiff tried to explain to officers that she was suffering from toxic encephalopathy and needed to get into the fresh air, because the garage fumes were triggering her condition, but they ignored her and threw her to the ground, arrested her, and took her to jail without justification. She suffered physical injury and emotional distress due to the incident and from being prevented from getting veterinary treatment for her dog.

In addition to these general allegations, the cause of action for negligence, as stated against defendant Inn, specifically alleges that Inn was negligent in (a) failing to remove or abate the toxic fumes in a timely manner, knowing that plaintiff’s medical condition would be exacerbated by the fumes, (2 failing to bring Plaintiff’s car from the garage, where the fumes appeared to be coming from, and (3) negligently failing to alert defendants City and SBPD of their knowledge of plaintiff’s medical condition. The cause of action for intentional infliction of emotional distress, as stated against defendant Inn, alleges that Inn knew about plaintiff’s medical condition, but intentionally refused to remove her car from its garage, aware that the toxicity of the garage would adversely affect plaintiff’s medical condition, causing plaintiff to suffer physical and emotional injury, including severe emotional distress and mental suffering. It also alleges that defendants’ actions interfered by threat, intimidation, or coercion, with plaintiff’s exercise or enjoyment of her rights secured by the Constitution or laws of the state.

Defendant Inn has demurred to each cause of action, contending that neither of the causes of action alleged against it allege sufficient facts to constitute a cause of action, and has moved to strike the punitive damage allegations as to it.

With respect to the demurrer to the negligence cause of action, Inn contends that there are no facts alleged that support the existence of a duty recognized by law that was breached by Inn. While plaintiff alleges that Inn negligently failed to remove toxic fumes, there are no allegations that the source of the fumes was in its control, such that it could do anything about them. Inn has no duty to protect plaintiff from fumes or conditions coming from off of the property. Inn’s parking attendant is alleged to have called the police, but that is a privileged communication under Civil Code section 47. Inn also had no duty to have its parking attendant drive plaintiff’s vehicle. Finally, Inn had no duty to inform City or SBPD of plaintiff’s claimed medical condition.

Inn’s demurrer also contends that the allegations of the complaint do not allege a cause of action for intentional infliction of emotional distress. Inn asserts that since what it is alleged to have done does not amount to negligence, it certainly is not the extreme and outrageous conduct required for the claim.

In its motion to strike, Inn contends that there is no charging allegation of fraud, malice or oppression in either of the causes of action alleged against it, leading it to believe that the inclusion of a prayer for punitive damages against “all” defendants was in error. Further, there are no facts alleged to support the existence of fraud, malice, or oppression, as is required for a punitive damage claim, as those terms are defined by Civil Code section 3294(c).

Plaintiff filed a very late opposition.

ANALYSIS: The demurrer to the negligence cause of action is overruled, and the demurrer to the intentional infliction of emotional distress cause of action is sustained, with leave to amend. The motion to strike the punitive damage claim against defendant Inn is sustained, with leave to amend. To the extent plaintiff wishes to avail herself of the opportunity to attempt to correct these pleading defects, the Court will grant her leave to file an amended pleading. Any such amended pleading must be filed on or before November 6, 2019.

Plaintiff filed very late opposition to the demurrer and motion to strike. Pursuant to Code of Civil Procedure section 1005(b), opposition was due no later than nine court days prior to the original October 16, 2019 hearing date. Accounting for the court holiday on October 16, 2019, opposition was therefore due to be filed no later than Wednesday, October 2, 2019. However, it was not filed until October 15, a single court day prior to the hearing date. No attempt was made by plaintiff to obtain leave of court to file a late opposition or to seek a continuance of the hearing to allow her to file a timely opposition. Indeed, the hearing was continued one week by the Court, for internal reasons unrelated to the parties, and the opposition was still filed too late even for the continued hearing date. In filing the late opposition, plaintiff has made no effort even to explain why she was unable to comply with the basic filing requirements. Consequently, the opposition was disregarded by the Court in resolving the demurrer.

Demurrer

Demurrer The court’s task in ruling on a demurrer is to determine whether the complaint states a cause of action. (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) A demurrer admits the truth of all material facts properly pleaded (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967), no matter how unlikely or improbable they may be (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604), or how unlikely it will be that plaintiff will be able to prove the claim (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214). The court also assumes the truth of all reasonable inferences that may be drawn from the properly pleaded facts. (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1083.) The assumption of truth does not apply, however, to contentions, deductions, or conclusions of law or fact. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters, and therefore lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.)

1. Negligence cause of action.

Plaintiff’s SAC alleges that Inn was negligent in (a) failing to remove or abate the toxic fumes in a timely manner, knowing that plaintiff’s medical condition would be exacerbated by the fumes, (2 failing to bring Plaintiff’s car from the garage, where the fumes appeared to be coming from, and (3) negligently failing to alert defendants City and SBPD of their knowledge of plaintiff’s medical condition.

Inn’s demurrer addresses only the duty element of the claim, in contending there are no facts to support the existence of any duty on its part owed toward plaintiff. The argument is sparse, however, and the only authorities cited are with respect to the elements of negligence, and that the existence of duty is a question of law for the court. It then simply concludes—without analysis—that there are no facts alleged to show it had breached any recognized duty, noting that plaintiff does not allege the source of the fumes, and its employee’s act in calling the police is a privileged communication.

The analysis of whether a duty exists is not quite so simplistic. Certainly, duty is an essential element of the tort of negligence. (Gregory v. Cott (2014) 59 Cal.4th 996, 1012.) Further, Inn is correct that whether a duty exists is a question of law to be resolved by the court. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.) Generally, a duty may (1) be imposed on the defendant by law, (2) be assumed by the defendant, or (3) arise out of a special relationship between plaintiff and defendant. (Potter v. Firestone Tire & Rubber Co.(1993) 6 Cal.4th 965, 984.)

Generally speaking, in determining whether a party has a legal duty in a particular factual situation, a distinction is drawn between claims of liability based upon misfeasance and those based on nonfeasance. Misfeasance exists when the defendant is responsible for making the plaintiff’s position worse, i.e., the defendant has created a risk. Conversely, nonfeasance is found when the defendant has failed to aid plaintiff through beneficial intervention. (Jackson v. Ryder Truck Rental, Inc.(1993) 16 Cal.App.4th 1830, 1838.) Liability for misfeasance is based upon the general duty of ordinary care to prevent others from being injured by one’s conduct. (Civ. Code, § 1714, subd. (a); Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 49.)

Liability for nonfeasance, on the other hand, is generally limited to situations in which there is a special relationship that creates a duty to act. (Eric J. v. Betty M. (1999) 76 Cal.App.4th 715, 717.) This is because, as a rule, no one has a duty to come to the aid of another person; a person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another, unless there is some relationship between them that gives rise to a duty to act. (Id. at p. 727.) Because the traditional weighing process using the seven factors set forth in Rowland v. Christian (1968) 69 Cal.2d 108, 113, has already been done by courts in formulating the “no duty to aid” rule in the context of liability for nonfeasance, it is not necessary to engage in the weighing process in a particular case. (Eric J. v. Betty M., supra, 76 Cal.App.4th at p. 729-730.)

The common law concept of a special relationship that might give rise to a duty to act applies in circumstances where one takes custody of another under circumstances that deprive the other of his normal opportunities for protection, and includes the relationship of innkeeper and guest. (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1203, citing Rodriguez v. Inglewood Unified School District (1986) 186 Cal.App.3d 707, 712-713.)

Plaintiff’s claims that Inn was negligent are primarily claims of nonfeasance, i.e., that Inn was negligent in failing to act in a particular manner. Her complaint sufficiently alleges, however, the facts to support the existence of a special relationship that might create a duty to affirmatively act in alleging that she was a guest at Inn, who when checking in had specifically informed its representatives that she had a medical condition that resulted in an extreme sensitivity to environmental toxins, and after a few days had informed Inn of chemical fumes that were increasing in severity.

It is for this reason that the Court finds perplexing the Inn’s failure to analyze the nature and extent of any duty it might have owed to plaintiff, and its perfunctory conclusion that it owed no duty to her. Certainly, as a guest of the Inn who first informed Inn of her sensitivity to chemicals, and then informed it of a chemical smell that was increasing in severity, the Court could find that Inn may have had a duty to at least investigate the circumstances of the chemical fumes. Inn simply concludes that it had no duty because plaintiff did not allege whether the fumes came from the Inn itself, such that it could have done anything about them, but that was not something that would necessarily have been within plaintiff’s knowledge. Indeed, plaintiff would have been restricted in her ability to ascertain the source of the chemical fumes, both because she was a guest of the Inn and did not have access to the “behind the scenes” areas at the Inn where chemicals might be used, and because it would not be wise, in terms of her sensitivity and adverse physical reaction to chemicals, for her to have personally gone looking for them. Inn, on the other hand, was in a position to investigate the source of the chemicals and, if they emanated from Inn’s property, to remediate or work to eliminate the fumes’ intrusion on its guests, including plaintiff.

Under the facts and circumstances alleged in the complaint, the Court cannot find, as it must in order to sustain a demurrer, that defendant Inn has established as a matter of law that it owed no duty to plaintiff. Certainly, it may well ultimately be shown in this case that no relevant duty was owed, and/or that no relevant duty was breached by defendant, and/or that any breach had no causal relationship to any injuries or damages sustained by plaintiff. However, the Court can make no such finding, based upon the demurrer’s simple assertion—without analysis or citation of relevant authority—that no facts were alleged to support the existence of any duty owed to plaintiff.

Consequently, the Court will overrule the demurrer to the negligence cause of action, based upon the demurrer’s failure to meet its burden.

2. Intentional infliction of emotional distress cause of action

The elements of a cause of action for intentional infliction of emotional distress include (1) outrageous conduct by the defendant (2) performed with the intention of causing or reckless disregard of the probability of causing emotional distress, (3) the plaintiff’s suffering of severe or extreme emotional distress, and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Huntingdon Life Sciences v. Stop Huntingdon Animal Cruelty USA (2005) 129 Cal.App.4th 1228, 1259.) To be outrageous, conduct must be so extreme as to exceed all bounds of that usually tolerated in a civilized society. (Ibid.) Whether a defendant’s conduct can reasonably be found to be outrageous is a question of law to be determined by the Court. Only if reasonable persons may differ is it a question of fact for the jury. (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534.)

Plaintiff’s cause of action for intentional infliction of emotional distress, as stated against Inn, alleges that Inn knew about plaintiff’s medical condition, but intentionally refused to remove her car from its garage, aware that the toxicity of the garage would adversely affect her medical condition, and that she suffered severe emotional distress as a result.

Inn’s demurrer challenges the claim on the basis that the alleged conduct is not “outrageous,” as a matter of law. The Court agrees. By no measure can Inn’s employee’s conduct in refusing to remove plaintiff’s car from the garage be reasonably found to be so extreme as to exceed all bounds of that usually tolerated in a civilized society. Because the conduct alleged to support the cause of action does not constitute outrageous conduct as a matter of law, the complaint fails to state a cause of action for intentional infliction of emotional distress against defendant Inn, requiring that its demurrer to the cause of action be sustained.

Motion to strike

The motion to strike the SAC’s punitive damage allegations against Inn is granted.

On motion to strike, a court can strike out any irrelevant, false, or improper matter inserted in a pleading. (Code Civ. Proc., §§ 435, subd. (b)(1); 436, subd. (a).) Just as with a demurrer, the grounds for a motion to strike must appear on the face of the pleading or from matter which the court may take judicial notice. (Code Civ. Proc., § 437, subd. (a).) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint is an “immaterial allegation,” and is considered “irrelevant matter” subject to a motion to strike. (Code Civ. Proc., §§ 431.10, subds. (b)(3), (c), and 436, subd. (a).)

The courts have long been charged with an important gate-keeping function with respect to claims for punitive damages. Because of the inflammatory nature of a punitive damage allegation, the law requires that all pleadings in which punitive damages are sought allege specific facts which, if proven, would constitute malice, oppression, or fraud supporting a punitive damage request, as those terms are defined by Civil Codesection 3294(c). (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) When presented with a motion to strike, a trial court is obligated to strike from a pleading a request for punitive damages if there are insufficient specific facts alleged to meet the statutory definitions of malice, oppression, or fraud. (See Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63-64; Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6; and Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)

Under Civil Code section 3294(c), “malice” means conduct that is intended by the defendant to cause injury to the plaintiff or despicable conduct that is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1).) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (Civ. Code, § 3294, subd. (c)(2).) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (Civ. Code, § 3294, subd. (c)(3).) The element of “despicable conduct” was added by the Legislature by amendment to the statutory definitions of malice and oppression in 1987, for the purpose of providing greater assurance that punitive damages will be awarded only to punish conduct that is truly blameworthy and reprehensible. (Mock v. Michigan Millers Mut. Ins. Co. (1992) 4 Cal.App.4th 306, 331.) It has been defined to mean conduct that is so vile, contemptible, miserable, wretched, or loathsome that it would be looked down on and despised by ordinary decent people. (Id.)

There is no allegation of fraudulent conduct by Inn. Further, the Court cannot find that any of Inn’s conduct, as it is currently alleged in the SAC, rises to the level of “despicable conduct,” or constitutes “malice” or “oppression,” as those terms are defined by Civil Code section 3294(c). As a result, the Court will grant the motion to strike the punitive damage allegations, to the extent they are asserted against Inn.

Leave to Amend

Because the SAC is the first pleading to have been challenged by a demurrer or motion to strike, the Court will allow plaintiff leave to file a further amended complaint, in order to allow her the opportunity to allege further facts, if she can, to correct the pleading defects for which the demurrer was sustained and the motion to strike was granted. To the extent plaintiff chooses to do so, the Court will direct that any such “Third Amended Complaint,” shall be filed no later than November 6, 2019.

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