Brittany Dowdy vs Avtar Judge et al

I. BACKGROUND On or about August 19, 2022, plaintiff Brittany Dowdy (“Plaintiff”) checked into defendant Quality Inn & Suites South San Jose/ Morgan Hill (“Quality Inn”) located at 16525 Condit Road in Morgan Hill (“Subject Hotel”). (Complaint, ¶15). On or about August 20, 2022, Plaintiff awoke with severe itching and discovered numerous bed bug bites across her body. (Complaint, ¶16). Plaintiff inspected her bed and discovered specks of blood on the mattress. (Complaint, ¶17).

Plaintiff reported her injuries to the Subject Hotel management, but the Subject Hotel manager was dismissive. (Complaint, ¶19). On August 20, 2022, Plaintiff checked out of the Subject Hotel. (Complaint, ¶18).

On or about August 29, 2022, Plaintiff sought medical care and was diagnosed with infected bedbug bites. (Complaint, ¶20). Plaintiff has physical and emotional scars as a result of the bedbug bites. (Complaint, ¶21).

Defendants deliberately and recklessly chose not to inspect or otherwise ensure Plaintiff’s room was free of bedbugs immediately before Plaintiff’s stay at the Subject Hotel, willfully disregarding knowledge of a prior bedbug infestation. (Complaint, ¶23). Defendants failed to eradicate a prior bedbug infestation of Plaintiff’s room despite knowledge of a prior infestation in that room. (Complaint, ¶¶24 – 25).

On August 16, 2024, Plaintiff filed a complaint against defendants Choice Hotels International, Inc. (“CHI”); Quality Inn; Sunbake, LLC (“Sunbake”), and Avtar Judge (“Judge”) asserting causes of action for: (1) Battery (2) Negligence (3) Intentional Infliction of Emotional Distress (4) Fraudulent Concealment (5) Private Nuisance (6) Public Nuisance (7) Breach of Contract

On June 10, 2025, defendants CHI, Quality Inn, Sunbake, and Judge (“Moving Defendants”) filed the motion now before the court, a motion to strike the request for attorney’s fees and punitive damage allegations from Plaintiff’s Complaint.

II. LEGAL STANDARD

A. PROCEDURAL REQUIREMENTS Code of Civil Procedure section 435.5(a) requires that before filing a motion to strike, the moving party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the motion to strike and file a declaration detailing their meet and confer efforts. However, an insufficient meet and confer process is not grounds to grant or deny a motion to strike. (Code Civ. Proc., § 435.5(a)(4)).

Code of Civil Procedure section 435(b) sets forth that a party may bring a motion to strike within the time allowed to respond to a pleading. (See also, Cal. Rule of Court, rule 3.1322(b)). A motion to strike all or part of an answer 6

to a complaint must therefore be brought within 10 days. (See Code Civ. Proc. § 430.40(b); Cal. Rules of Court 3.1322(b)). The Court has the power, however, to strike out all or any part of a pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court on its own motion. (Code Civ. Proc. § 436(b)). The Court therefore has the authority to consider the matter at any time, even after the statutory deadline has passed. CPF Agency Corp v. R&S Towing (2005) 132 Cal.App.4th 1014, 1021 overruled on other grounds in Dan’s City Used Cars Inc. v. Pelkey (2013) 569 U.S. 251.

B. REQUEST FOR JUDICIAL NOTICE AND EVIDENTIARY OBJECTION Pursuant to Code of Civil Procedure section 436(a), the court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. Id., § 436(b). The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws.

Id. § 436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. Id. § 437. “When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.” (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768). A motion to strike can be used where the complaint or other pleading has not been drawn or filed in conformity with applicable rules or court orders. (Code Civ. Proc., § 436(b)). This provision is for "the striking of a pleading due to improprieties in its form or in the procedures pursuant to which it was filed." (Ferraro v.

Camarlinghi (2008) 161 Cal.App.4th 509, 528 (emphasis in original)).

III. ANALYSIS

A. ATTORNEY’S FEES Moving Defendants’ request the court strike Plaintiff’s prayer for attorney’s fees from the Complaint.

“Under California law, ‘each party to a lawsuit must pay its own attorney fees unless a contract or statute or other law authorizes a fee award.’” (Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4th 230, 237, 149 Cal.Rptr.3d 440; see Code Civ. Proc., § 1021). Thus, unless specifically provided by statute or agreement, attorney fees are not recoverable.” (K.I. v. Wagner (2014) 225 Cal.App.4th 1412, 1420–1421).

Plaintiff has not identified in the Complaint any contractual or statutory basis for seeking attorney’s fees. Plaintiff does not address this argument in opposition. Accordingly, Moving Defendants’ motion to strike the request for attorney’s fees from the prayer for relief in Plaintiff’s complaint is GRANTED.

B. PUNITIVE DAMAGES Moving Defendants’ motion seeks also to strike Plaintiff’s allegations regarding punitive damages. Pursuant to Civil Code section 3294, punitive damages may be recovered “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.”

In G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 26 (Searle), the court wrote, “In California the award of damages by way of example or punishment is controlled by Civil Code section 3294, which authorizes that kind of award against a tortfeasor who has been guilty of ‘oppression, fraud or malice, express or implied.’”

Notwithstanding relaxed pleading criteria, certain tortious injuries demand firm allegations. Vague, conclusory allegations of fraud or falsity may not be rescued by the rule of liberal construction. When the plaintiff alleges an intentional wrong, a prayer for exemplary damage may be supported by pleading that the wrong was committed willfully or with a design to injure. When nondeliberate injury

is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice. (Searle, supra, 49 Cal.App.3d at p. 29; internal citations omitted).

Plaintiff seeks punitive damages in connection with her second cause of action for negligence, a non-deliberate injury. (See Complaint, ¶79). Using the same allegations, Plaintiff also seeks punitive damages in connection with the first (battery), third (intentional infliction of emotional distress), and fourth (fraudulent concealment) causes of action. (See Complaint, ¶¶62, 90, and 110). It is these portions of the complaint that Moving Defendants move to strike along with the prayer for punitive damages.

“‘Malice’ means 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.” (Civil Code §3294, subd. (c)(1)). To plead a “willful and conscious disregard of the rights of others,” a plaintiff need only allege, “that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1211 (Lackner)).

“‘Despicable conduct’ has been described as conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. [Citation.] Such conduct has been described as ‘[having] the character of outrage frequently associated with crime.’” (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050). “[I]n cases involving conduct performed without intent to harm, a finding of ‘malice’ for punitive purposes requires proof by clear and convincing evidence that defendant’s tortious wrong amounted to ‘despicable conduct’ and that such despicable conduct was carried on with a ‘willful and conscious disregard’ of the rights or safety of others.” (See College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704 (College Hospital)).

“Punitive damages are appropriate if the defendant’s acts are reprehensible, fraudulent or in blatant violation of law or policy. The mere carelessness or ignorance of the defendant does not justify the imposition of punitive damages. . . Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.” (Lackner, supra, 135 Cal.App.4th at p. 1210). In Lackner, the court held, as a matter of law, that a snowboarder who struck a skier while racing through a rest area did not engage in despicable conduct.

Applying these criteria, we find the evidence is insufficient as a matter of law to show that North's conduct was despicable and that he acted with base or evil intent. It is undisputed that North did not intentionally hit Lackner and that when he saw her, he desperately attempted to avoid hitting her but lost control and was unable to do so. While North was traveling at a high rate of speed, Mammoth did not prohibit racing on an advanced run and no signs were posted warning skiers to slow down.

Skiing conditions were very good at the time. The snow was good, the visibility was excellent, and the run was largely deserted. Given North's level of expertise and the conditions on the mountain, his speed alone was not despicable. While his decision to race through the rest area may have been reckless, as a practical or technical matter, he was not out of control until he saw Lackner and attempted to avoid hitting her. His error was in snowboarding at a high rate of speed without looking in the direction he was heading.

However, when he did see her, he attempted to avoid hitting her, which is entirely inconsistent with evil or criminal intent. (Id. at p. 1213).

Here, Plaintiff has alleged that defendants were aware of a prior bedbug infestation in the very room Plaintiff stayed but placed Plaintiff in that room despite that awareness. Under such alleged circumstances, the court is of the opinion that Plaintiff has sufficiently alleged a willful and conscious disregard of Plaintiff’s safety. The court is also of the opinion that reasonable minds may differ as to whether such conduct be viewed as despicable, i.e., loathsome/ looked

down upon and despised by ordinary decent people. Certainly, at the pleading stage and without a fully developed set of facts, the court cannot conclude the alleged conduct would not amount to despicable conduct as a matter of law.

In reply, defendants CHI and Sunbake argue Plaintiff has not sufficiently alleged punitive damages against them as corporate entities pursuant to Civil Code section 3924, subdivision (b). In 1980, the California Legislature: added subdivision (b) to section 3294. (Stats. 1980, ch. 1242, § 1, p. 4217). Following subsequent minor amendments, the statute now states in pertinent part: "An employer shall not be liable for [punitive] damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer 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.

With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation." (§ 3294, subd. (b), italics added). The drafters' goals were to avoid imposing punitive damages on employers who were merely negligent or reckless and to distinguish ordinary respondeat superior liability from corporate liability for punitive damages. (See Weeks v.

Baker & McKenzie (1998) 63 Cal. App. 4th 1128, 1150-1151 [74 Cal. Rptr. 2d 510]; see also College Hospital, Inc. v. Superior Court (1994) 8 Cal. 4th 704, 712-713 [34 Cal. Rptr. 2d 898, 882 P.2d 894] [noting that, after 1979, the Legislature limited circumstances under which an employer could be held liable for punitive damages]). Section 3294 is no longer silent on who may be responsible for imputing punitive damages to a corporate employer. For corporate punitive damages liability, section 3294, subdivision (b), requires that the wrongful act giving rise to the exemplary damages be committed by an "officer, director, or managing agent." (White v.

Ultramar (1999) 21 Cal.4th 563, 571-572; emphasis added).

Defendants CHI and Sunbake tacitly acknowledge the general allegation found at paragraph 47 of the Plaintiff’s complaint that “An officer, director, or managing agent of Defendants ... authorized or ratified the fraudulent conduct of the Subject Hotel employees by failing to remedy prior bedbug infestations and deliberately concealing the fact of their presence in the Hotel,” but contend this is insufficient because the allegation does not “specifically identif[y] who ratified the alleged conduct of the employees of Defendants [CHI] and/or [Sunbake].”1 Defendants CHI and Sunbake cite to Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 167, but the opinion does not hold that a plaintiff must specifically identify the officer, director, or managing agent by name.

In reply, Moving Defendants argue for the first time that the punitive damage allegations are not specific as to each defendant. The court declines to address this particular argument since it appears to be new argument raised for the first time on reply. The court may refuse to consider arguments first raised in reply papers since the opposing party has not been given the opportunity to address them. (See, e.g., REO Broadcasting Consultants v. Martin (1999) 69 Cal. App. 4th 489, 500).

IV. CONCLUSION Based on the foregoing, the defendant’s motion to strike portions of Plaintiff’s Complaint is GRANTED in part, and DENIED in part as follows: Defendant’s motion to strike Plaintiff’s prayer for attorney’s fees from the Complaint is GRANTED. Defendant’s motion to strike paragraphs 62, 79, 90, and 110, and the request for punitive damages from the prayer for relief in Plaintiff’s Complaint is DENIED.

The Court will prepare the formal Order.

1 See page 5, lines 6 – 7, of the Reply to Opposition to Motion to Strike Portions of Plaintiff’s Complaint. 9