Preview
Ilan N. Rosen Janfaza (State Bar No. 298078) E-FILED
1 Law Offices of Ilan N. Rosen Janfaza, A.P.C. 12/3/2020 5:28 PM
9025 Wilshire Blvd., Penthouse Floor Superior Court of California
2 Beverly Hills, CA 90211
Telephone: (310) 550-6000 County of Fresno
3 Facsimile: (310) 861-9000 By: A. Rodriguez, Deputy
Email: ilan@hotelinjurylaw.com
4
Attorneys for Plaintiffs
5 KAYLA BROWN,
BRYNIN BROWN, NATHAN CASTANEDA,
6 and EMMA BROWN
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF FRESNO
10
KAYLA BROWN; BRYNIN Case No. 20CECG03545
11 BROWN; NATHAN CASTANEDA;
EMMA BROWN, a minor, by Kayla Unlimited Jurisdiction
12 Brown, as her guardian ad litem,
COMPLAINT FOR DAMAGES
13
Plaintiffs, 1. Battery
14 2. Negligence
v. 3. Intentional Infliction of Emotional Distress
15 4. Breach of Implied Warranty of Habitability
CASA DE LUNA; SAN MAR 5. Breach of Covenant of Quiet Enjoyment
16 PROPERTIES, INC.; MARC A. 6. Violation of Civil Code Section 1942.4
WILSON; JACQUELINE TAPIA; 7. Private Nuisance
17 BRITIANY GARCIA; and DOES 1 8. Public Nuisance
through 20, inclusive,
18 (Demand for Jury Trial)
Defendants.
19
20
Plaintiffs, KAYLA BROWN; BRYNIN BROWN; NATHAN CASTANEDA and
21
EMMA BROWN, complain of and allege as follows:
22
I. INTRODUCTION
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1. This action arises out of personal injury and monetary damages sustained by
24
Plaintiffs as a result of bedbug bites during their stay at an apartment complex owned and operated
25
by Defendants in Fresno, California.
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2. Plaintiffs, KAYLA BROWN; BRYNIN BROWN; NATHAN CASTANEDA; and
27
EMMA BROWN (individually, respectively, “Ms. Kayla Brown,” “Ms. Brynin Brown,” “Mr.
28
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1 Nathan Castaneda,” and “Ms. Emma Brown,” collectively, “Plaintiffs”) bring this action against
2 Defendants, CASA DE LUNA; SAN MAR PROPERTIES, INC.; MARC A. WILSON;
3 JACQUELINE TAPIA; BRITIANY GARCIA; and DOES 1 through 20, inclusive (collectively,
4 “Defendants”).
5 II. PARTIES
6 3. At all times mentioned herein, Plaintiffs are residents of the State of California.
7 4. At all times mentioned herein, Plaintiffs are informed, believe and thereon allege
8 that Defendant, CASA DE LUNA is doing business in Fresno, California as CASA DE LUNA,
9 located at 5175 N Fresno St, Fresno, CA 93710.
10 5. At all times mentioned herein, Plaintiff is informed, believes and thereon alleges
11 that Defendant, SAN MAR PROPERTIES, INC., a California corporation with its principal
12 executive offices in Fresno, CA, is the parent corporation of CASA DE LUNA, located at 5175 N
13 Fresno St, Fresno, CA 93710.
14 6. At all times mentioned herein, Plaintiffs are informed, believe and thereon allege
15 that Defendant, MARC A. WILSON, an individual, with offices at 6356 N. Fresno St, Fresno, CA
16 93710, operates, and manages SAN MAR PROPERTIES, INC., a parent corporation of CASA DE
17 LUNA, located at 5175 N Fresno St, Fresno, CA 93710.
18 7. At all times mentioned herein, Plaintiffs are informed, believe and thereon allege
19 that Defendant, JACQUELINE TAPIA, an individual, with offices at 6477 Van Nuys Blvd. Van
20 Nuys, CA 91405, operates, and manages CASA DE LUNA, located at 5175 N Fresno St, Fresno,
21 CA 93710.
22 8. At all times mentioned herein, Plaintiffs are informed, believe and thereon allege
23 that Defendant, BRITIANY GARCIA, an individual, with offices at 6477 Van Nuys Blvd. Van
24 Nuys, CA 91405, operates, and manages CASA DE LUNA, located at 5175 N Fresno St, Fresno,
25 CA 93710 (hereinafter, referred to as the “Casa De Luna” or the “Apartment”).
26 9. Plaintiffs are ignorant of the true identity and capacity of Defendants designated as
27 DOES 1 through 20, but will amend the Complaint when their identities have been ascertained
28 according to proof at the time of trial. Plaintiffs allege on information and belief that each and
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1 every DOE Defendant is in some manner responsible for the acts and conduct of other Defendants,
2 and were and are, responsible for the injuries, damages and harm incurred by Plaintiffs.
3 10. Plaintiffs are informed, believe and thereon allege, that at all times relevant during
4 the liability period, that Defendants, and each of them, including without limitation those
5 Defendants herein sued as DOES, were acting in concert or participating with each other, or were
6 joint participants and collaborators in the acts complained of, and were the agents or employees of
7 others in doing the acts complained of herein, each and all of them acting within the course and
8 scope of said agency and/or employment by others, each and all of them acting in concert with the
9 other and all together.
10 III. VENUE AND JURISDICTION
11 11. Venue is proper in this Court because the injuries alleged in this Complaint
12 occurred within the County of Fresno.
13 12. This Court has unlimited jurisdiction over the parties named in this Complaint as
14 the amount in controversy exceeds $25,000. Defendants are subject to the personal jurisdiction of
15 this Court.
16 IV. FACTS AND ALLEGATIONS COMMON TO ALL CAUSES OF ACTION
17 13. According to the Centers for Disease Control and Prevention (the “CDC”), Cimex
18 lectularius, more commonly known as “bed bugs,” are “small, flat, parasitic insects that feed
19 solely on the blood of people and animals while they sleep.” They are “found across the globe
20 from North and South America, to Africa, Asia and Europe. Although the presence of bed bugs
21 has traditionally been seen as a problem in developing countries, it has recently been spreading
22 rapidly to parts of the United States, Canada, the United Kingdom, and other parts of Europe. Bed
23 bugs have been found in five-star Apartments and resorts and their presence is not determined by
24 the cleanliness of the living conditions where they are found.” (See
25 www.cdc.gov/parasites/bedbugs/ accessed November 1, 2020).
26 14. According to the CDC, “one of the easiest ways to identify a bed bug infestation is
27 by the tell-tale bite marks on the face, neck, arms, hands, or any other body parts while sleeping.”
28 Additionally, “because bed bug bites affect everyone differently, some people may have no
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1 reaction and will not develop bite marks or any other visible signs of being bitten. Other people
2 may be allergic to the bed bugs and can react adversely to the bites. These allergic symptoms can
3 include enlarged bite marks, painful swellings at the bite site, and, on rare occasions,
4 anaphylaxis.” (See www.cdc.gov/parasites/bedbugs/faqs.html accessed November 1, 2020).
5 15. It is also known that bedbugs are able to travel between rooms in an apartment
6 complex [see https://www.health.ny.gov/environmental/pests/bedbugs.htm, accessed November 1,
7 2020], requiring thorough inspection and treatment of adjacent rooms when bedbug activity is
8 found in an apartment complex.
9 16. On or about December 7, 2018, Plaintiffs, Kayla Brown and Brynin Brown signed
10 a lease at the CASA DE LUNA. They moved in along with their young daughter, Plaintiff, Emma
11 Brown, and was provided Apartment# 264 (hereinafter, referred to as “Plaintiffs’ Apartment”).
12 17. Plaintiff, Mr. Nathan Castaneda, also moved into the apartment.
13 18. On or about October 3, 2020, Plaintiffs began to experience an intense itching
14 sensation and bite marks all over their bodies. Soon after, upon inspection of their apartment,
15 Plaintiffs noticed that there are bed bugs.
16 19. On or about October 5, 2020, Plaintiffs notified the apartment manager regarding
17 the incident. Plaintiffs were told they would be put on a waiting list.
18 20. On or about October 8, 2020, an inspector came to the apartment unit, and
19 subsequently discovered bed bugs.
20 21. On or about October 9, 2020, Mr. Nathan Castaneda, spoke with the apartment
21 management, requesting that they inspect the other units for bed bugs. Plaintiffs noticed a hole
22 next to a power outlet in the apartment and questioned whether the infestation came from another
23 apartment unit. However, the apartment manager refused to inspect the other units.
24 22. On or about October 14, 2020, Mr. Castaneda requested that the pest control
25 treatment be paid for by the apartment management, as the incident was not caused by Plaintiffs.
26 However, leasing agent, BRITIANY GARCIA, refused.
27 23. On or about October 26, 2020, an exterminator came to perform a heat treatment on
28 the apartment unit. A week later, the apartment was given chemical treatment.
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1 24. The apartment also has a prior and/or ongoing history of bedbug infestations and
2 guests complaining of such infestations. As of the date of this Complaint, at least one prior
3 complaint in reviews discussing experiences of bedbugs at the apartment is listed on the website,
4 www.apartmentratings.com.
5 25. Defendants, and DOES 1 through 20, deliberately and recklessly chose not to
6 inspect or otherwise ensure that Plaintiffs’ Apartment, and neighboring apartments, were free of
7 Cimex lectularius (“bedbugs”) immediately after Plaintiffs notified management of the bedbug
8 problem in the Apartment, willfully disregarding knowledge of a bedbug infestation, and DOES 1
9 through 20.
10 26. Although Defendants, and DOES 1 through 20, were put on notice on multiple
11 occasions of a bedbug infestation in the CASA DE LUNA, Defendants, and DOES 1 through 20,
12 failed to eradicate such infestations, including an infestation in the Apartment that Plaintiffs
13 resided in.
14 27. Defendants, and DOES 1 through 20, deliberately chose not to remedy, or
15 otherwise failed to remedy the presence of Cimex lectularius (“bedbugs”) in Plaintiffs’ Apartment
16 and surrounding apartments.
17 28. Defendants, and DOES 1 through 20, knew that this Apartment Complex had a
18 bedbug infestation, and deliberately and recklessly chose to turn a blind eye to this infestation and
19 other tenant complaints.
20 29. Management did not place adequate safeguards to protect clients from an ongoing
21 bedbug exposure. Management, who oversaw these infestations, has not been replaced by
22 Defendants, and DOES 1 through 20, nor has management changed any procedures to safeguard
23 their tenants against bedbug infestations and inadequate oversight.
24 30. Defendants’, and DOES 1 through 20, actions before, during, and after Plaintiffs’
25 injury, including Management’s routine practice of authorizing staff to not properly inspect and
26 ensure that Plaintiffs’ Apartment and the surrounding apartments are free from bedbugs after a
27 tenant complaint, show that Defendants, and DOES 1 through 20, have a pattern and culture of
28 extreme indifference and reckless disregard for the value of human life and the rights of their
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1 tenants.
2 31. As part of Defendants’, and DOES 1 through 20, pattern and culture of extreme
3 indifference, Management did not implement adequate policies and procedures to sufficiently train
4 employees of the Apartment to inspect rooms for bedbug infestations and to protect Apartment
5 tenants from exposure to bedbug infestations.
6 32. Defendants, and DOES 1 through 20, authorized or ratified the conduct of the
7 Apartment employees by: (1) not terminating such employees responsible for Plaintiffs’ injuries;
8 (2) not training or retraining such employees regarding Cimex lectularius (“bedbug”) infestations;
9 (3) turning a blind eye to complaints and not terminating Management who has inadequately
10 protected tenants against bedbug infestations at the subject Apartment; (4) allowing and tolerating
11 a common practice and culture of extreme indifference by employees who do not properly inspect
12 and ensure that the Apartments are free from bedbug infestations; (5) not implementing adequate
13 policies and procedures prior to Plaintiffs’ injuries to prevent Cimex lectularius infestations; and
14 (6) not implementing any new policies and procedures after Plaintiffs’ injuries to prevent any
15 further Cimex lectularius infestations.
16 33. At no time, either prior to or subsequent to, Plaintiffs’ stay at the CASA DE
17 LUNA, have Plaintiffs observed bedbugs in their residence or experienced bites from bedbugs in
18 their residence.
19 34. Plaintiffs suffered and continue to suffer physical injuries (including, but not
20 limited to, bedbug bites, itching, and allergic reactions to the bedbug bites) and emotional injuries
21 (including, but not limited to, severe embarrassment, annoyance, discomfort, pain, apprehension,
22 tension, anxiety, and emotional distress) as a direct result of their stay at the CASA DE LUNA.
23 V. CLAIMS FOR RELIEF
24 FIRST CAUSE OF ACTION
25 By Plaintiffs Against All Defendants, and Does 1-20, Inclusive
26 (Battery)
27 35. Plaintiffs re-allege and incorporate by reference the allegations contained in the
28 preceding paragraphs of the Complaint as though fully set forth herein.
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1 36. During Plaintiffs’ stay, Defendants, and DOES 1 through 20, intentionally and
2 recklessly did acts that were unconsented to by Plaintiffs and therefore resulted in offensive
3 contact with their person, including but not limited to: (1) Defendants’, and DOES 1 through 20,
4 deliberate choice not to eradicate a Cimex lectularius infestation in the Apartment; (2)
5 Defendants’, and DOES 1 through 20, deliberate choice not to inspect or ensure that Plaintiffs’
6 Apartment, was free of Cimex lectularius immediately after Plaintiffs complained to the
7 Management on multiple occasions; (3) Defendants’, and DOES 1 through 20, deliberate and
8 reckless choice not to inspect the bed skirts in Plaintiffs’ Apartment to protect against and prevent
9 a Cimex lectularius infestation; (4) Defendants’, and DOES 1 through 20, willful disregard of a
10 Cimex lectularius infestation that was known to Defendants, and DOES 1 through 20, due to
11 infestations in Plaintiffs’ Apartment; (5) Defendants’ deliberate and reckless choice not to notify
12 Plaintiffs of the presence of Cimex lectularius in the surrounding apartments.
13 37. Defendants, and DOES 1 through 20, did the aforementioned acts with the intent to
14 cause a harmful or offensive contact with the body of Plaintiffs, or with a reckless disregard of the
15 probability of causing such offensive contact.
16 38. Defendants, and DOES 1 through 20, authorized or ratified the conduct of the
17 Apartment employees by: (1) not terminating such employees responsible for Plaintiffs’ injuries;
18 (2) not training or retraining such employees regarding Cimex lectularius (“bedbug”) infestations;
19 (3) turning a blind eye to complaints and not terminating Management who has inadequately
20 protected tenants against bedbug infestations at the subject Apartment; (4) allowing and tolerating
21 a common practice and culture of extreme indifference by employees who do not properly inspect
22 and ensure that the Apartments are free from bedbug infestations; (5) not implementing adequate
23 policies and procedures prior to Plaintiffs’ injuries to prevent Cimex lectularius infestations; and
24 (6) not implementing any new policies and procedures after Plaintiffs’ injuries to prevent any
25 further Cimex lectularius infestations.
26 39. As a direct, legal and proximate result of the actions of Defendants, and DOES 1
27 through 20, Plaintiffs sustained serious injuries to their person, all to Plaintiffs’ damage in an
28 amount to be shown according to proof and within the jurisdiction of the Court.
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1 40. As a direct, legal and proximate result of the aforesaid acts of Defendants, and
2 DOES 1 through 20, Plaintiffs were compelled to and did employ the services of hospitals,
3 physicians and surgeons, nurses, and the like, to care for and treat them, and did incur hospital,
4 medical, professional and incidental expenses, and Plaintiffs are informed and believe, and upon
5 such information and belief allege, that they will necessarily by reason of their injuries, incur
6 additional like expenses for an indefinite period of time in the future, all to Plaintiffs’ damage in a
7 sum to be shown according to proof.
8 41. Plaintiffs are informed and believe, and thereon allege, that the aforesaid conduct
9 of Defendants, and DOES 1 through 20, was carried out with a willful and conscious disregard of
10 Plaintiffs’ right to be free from such tortious behavior, such as to constitute oppression, fraud or
11 malice pursuant to California Civil Code Section 3294, and that an officer, director, or managing
12 agent of Defendants, and DOES 1 through 20, authorized or ratified the wrongful acts of the
13 employees of Defendants, and DOES 1 through 20, entitling Plaintiffs to punitive damages in an
14 amount appropriate to punish and set an example of Defendants, and DOES 1 through 20.
15 SECOND CAUSE OF ACTION
16 By Plaintiffs Against All Defendants, and Does 1-20, Inclusive
17 (Negligence)
18 42. Plaintiffs re-allege and incorporate by reference the allegations contained in the
19 preceding paragraphs of the Complaint as though fully set forth herein.
20 43. At all times relevant hereto, as owners, operators, and managers of the Apartment,
21 the Defendants, and DOES 1 through 20, owed Plaintiffs the duty to exercise reasonable care in
22 the operation and maintenance of the Apartment. This duty includes, but is not limited to: the
23 duty of Defendants, and DOES 1 through 20, to maintain the Apartment in a safe and habitable
24 condition and to keep it free from insect infestations, namely infestations of Cimex lectularius, for
25 the entire duration of Plaintiffs’ tenancy.
26 44. Defendants, and DOES 1 through 20, breached the above duties when they, among
27 other things:
28 (1) allowed an infestation of Cimex lectularius to become established in
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1 Plaintiffs’ Apartment of the CASA DE LUNA;
2 (2) failed to eradicate a bedbug infestation in Plaintiffs’ Apartment after being
3 placed on notice by Plaintiffs on multiple occasions; and
4 (3) chose not to inspect and did not ensure that the bed in Plaintiffs’ Apartment
5 was free from bedbugs after Plaintiffs complained to Management on
6 multiple occasions; and
7 (4) failed to have an exterminator properly inspect Plaintiffs’ Apartment and
8 neighboring apartments of the presence of Cimex lectularius after being
9 placed on notice on multiple occasions by Plaintiffs of a bedbug infestation.
10 45. The acts by Defendants, and DOES 1 through 20, as enumerated in the above
11 paragraph, want of even scant care represent an extreme departure from the ordinary standard of
12 conduct for Apartments, thereby rising to the level of gross negligence.
13 46. As a direct and proximate result of these breaches of duty by Defendants, and
14 DOES 1 through 20, Plaintiffs suffered bedbug bites, and continues to suffer physical and
15 psychological injury.
16 47. Defendants, and DOES 1 through 20, performed the acts enumerated in paragraph
17 44, for which they knew, or should have known, would be highly probable that Plaintiffs would be
18 bitten by bedbugs and harm would result.
19 48. Defendants, and DOES 1 through 20, have a statutory duty under California Health
20 & Safety Code Section 17920.3 to ensure that in their Apartment there does not exist inadequate
21 sanitation “that endangers the life, limb, health, property, safety, or welfare of the public or the
22 occupants thereof.” Section 17920.3(a)(12) specifically defines inadequate sanitation to include
23 “infestation of insects, vermin, or rodents” as determined by a health officer or code enforcement
24 officer. California Health & Safety Code Section 17920.3 states: “Any building or portion
25 thereof including any dwelling unit, guestroom or suite of rooms, or the premises on which the
26 same is located, in which there exists any of the following listed conditions to an extent that
27 endangers the life, limb, health, property, safety, or welfare of the public or the occupants thereof
28 shall be deemed and hereby is declared to be a substandard building: (a) Inadequate sanitation
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1 shall include, but not be limited to, the following: …(12) Infestation of insects, vermin, or rodents
2 as determined by a health officer or, if an agreement does not exist with an agency that has a
3 health officer, the infestation can be determined by a code enforcement officer, as defined in
4 Section 829.5 of the Penal Code, upon successful completion of a course of study in the
5 appropriate subject matter as determined by the local jurisdiction.”
6 49. Additionally, Title 25, Chapter 1, Subchapter 1, § 40 of California State Housing
7 Law states, in part: “In every apartment house or motel, every part of every bed, including the
8 mattress, sheets, blankets, and bedding shall be kept in a clean, dry sanitary condition, free from
9 filth, urine, or other foul matter, and from the infection of lice, bedbugs or other insects.”
10 50. Defendants, and DOES 1 through 20, violated the above laws, which were
11 designed to protect occupants of Apartments, when they: (1) allowed an infestation of Cimex
12 lectularius to become established Plaintiffs’ Apartment; and (2) did not ensure that Plaintiffs’
13 Apartment was free from bedbugs once being placed on notice by Plaintiffs of a Cimex lectularius
14 infestation. Accordingly, Defendants’, and DOES 1 through 20, actions were negligent as a
15 matter of law.
16 51. The injuries suffered by Plaintiffs in this case were occurrences the nature of which
17 the state statutes and regulations were designed to prevent and Plaintiffs are within the class of
18 persons whom such statutes and regulations are intended to protect.
19 52. At all times relevant hereto, Defendants, and DOES 1 through 20, owed a duty to
20 Plaintiffs to act reasonably so as not to cause Plaintiffs to suffer unreasonable mental suffering.
21 Said Defendants, and DOES 1 through 20, breached this duty by causing foreseeable and
22 unreasonable distress to Plaintiffs.
23 53. As a direct and proximate result of Defendants’, and DOES 1 through 20, herein
24 alleged conduct, Plaintiffs suffered and continue to suffer extreme and severe embarrassment,
25 annoyance, discomfort, pain, apprehension, tension, anxiety, and emotional distress.
26 54. Defendants, and DOES 1 through 20, authorized or ratified the conduct of the
27 Apartment employees by: (1) not terminating such employees responsible for Plaintiffs’ injuries;
28 (2) not training or retraining such employees regarding Cimex lectularius (“bedbug”) infestations;
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1 (3) turning a blind eye to complaints and not terminating Management who has inadequately
2 protected tenants against bedbug infestations at the subject Apartment; (4) allowing and tolerating
3 a common practice and culture of extreme indifference by employees who do not properly inspect
4 and ensure that the Apartments are free from bedbug infestations; (5) not implementing adequate
5 policies and procedures prior to Plaintiffs’ injuries to prevent Cimex lectularius infestations; and
6 (6) not implementing any new policies and procedures after Plaintiffs’ injuries to prevent any
7 further Cimex lectularius infestations.
8 55. As a direct and proximate result of these breaches of duty by Defendants’, and
9 DOES 1 through 20, Plaintiffs continue to suffer physical and psychological injuries, and suffered
10 medical expenses for their physical and psychological injuries specifically alleged above, loss of
11 and damage to personal property, and other expenses, all to Plaintiffs’ damage in an amount to be
12 shown according to proof and within the jurisdiction of the Court.
13 56. As a direct, legal and proximate result of these breaches of duty by Defendants, and
14 DOES 1 through 20, Plaintiffs were compelled to and did employ the services of hospitals,
15 physicians and surgeons, nurses, and the like, to care for and treat them, and did incur hospital,
16 medical, professional and incidental expenses, and Plaintiffs are informed and believe, and
17 thereon allege, that they will necessarily by reason of their injuries, incur additional like expenses
18 for an indefinite period of time in the future, all to Plaintiffs’ damage in a sum to be shown
19 according to proof.
20 57. Plaintiffs are informed and believe, and thereon allege, that the aforesaid conduct
21 of Defendants, and DOES 1 through 20, was carried out with a willful and conscious disregard of
22 Plaintiffs’ right to be free from such tortious behavior, such as to constitute oppression, fraud or
23 malice pursuant to California Civil Code Section 3294, and that an officer, director, or managing
24 agent of Defendants, and DOES 1 through 20, authorized or ratified the wrongful acts of the
25 employees of Defendants, and DOES 1 through 20, entitling Plaintiffs to punitive damages in an
26 amount appropriate to punish and set an example of Defendants, and DOES 1 through 20.
27 //
28 //
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1 THIRD CAUSE OF ACTION
2 By Plaintiffs Against All Defendants, and Does 1-20, Inclusive
3 (Intentional Infliction of Emotional Distress)
4 58. Plaintiffs re-allege and incorporate by reference the allegations contained in the
5 preceding paragraphs of the Complaint as though fully set forth herein.
6 59. The actions of Defendants, and DOES 1 through 20, were intentional, extreme, and
7 outrageous—namely, because of the following egregious and reckless conduct: (1) Defendants’,
8 and DOES 1 through 20, willful disregard of a Cimex lectularius infestation that was either known
9 or should have been known from other infestations in Plaintiffs’ Apartment and neighboring
10 apartments; (2) Defendants’, and DOES 1 through 20, deliberate and reckless choice to abstain
11 from inspecting Plaintiffs’ Apartment after being placed on notice by Plaintiffs of the presence of
12 Cimex lectularius in Plaintiffs’ Apartment; (3) Defendants’, and DOES 1 through 20, deliberate
13 choice not to eradicate a bedbug infestation in Plaintiffs’ Apartment, which was made aware to
14 Defendants, and DOES 1 through 20; (4) Defendants’, and DOES 1 through 20, deliberate and
15 reckless choice not to inspect and ensure that the bed skirts are free from a Cimex lectularius
16 infestation immediately after Plaintiffs’ complaints on multiple occasions; (5) Defendants’, and
17 DOES 1 through 20, routine practice of showing extreme indifference to the danger of bedbug
18 infestations; (6) Defendants’, and DOES 1 through 20, failure to have adequate policies and
19 procedures to properly train employees of the CASA DE LUNA to inspect rooms for bedbug
20 infestations and to adequately protect Apartment tenants from an exposure to bedbug infestations;
21 and (7) Defendants’, and DOES 1 through 20, failure to implement any new policies and
22 procedures after Plaintiffs’ injuries to prevent any further Cimex lectularius infestations in
23 Plaintiffs’ Apartment, which again exemplifies their extreme indifference to the rights of their
24 tenants and the value of the human life.
25 60. Defendants’, and DOES 1 through 20, actions were done with the intent to cause
26 serious emotional distress or with reckless disregard of the probability of causing Plaintiffs serious
27 emotional distress.
28 61. As a direct, legal and proximate result of the actions of Defendants, and DOES 1
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1 through 20, Plaintiffs suffered severe emotional distress that has caused Plaintiffs to sustain
2 severe, serious and permanent injuries to their person, all to Plaintiffs’ damage in a sum to be
3 shown according to proof and within the jurisdiction of the Superior Court.
4 62. As a direct, legal and proximate result of the aforesaid actions of Defendants, and
5 DOES 1 through 20, Plaintiffs were compelled to and did employ the services of hospitals,
6 physicians and surgeons, nurses, and the like, to care for and treat them, and did incur hospital,
7 medical, professional and incidental expenses, and Plaintiffs are informed and believe, and upon
8 such information and belief allege, that they will necessarily by reason of their injuries, incur
9 additional like expenses for an indefinite period of time in the future, all to Plaintiffs’ damage in a
10 sum to be shown according to proof.
11 63. Defendants, and DOES 1 through 20, authorized or ratified the conduct of the
12 Apartment employees by: (1) not terminating such employees responsible for Plaintiffs’ injuries;
13 (2) not training or retraining such employees regarding Cimex lectularius (“bedbug”) infestations;
14 (3) turning a blind eye to complaints and not terminating Management who has inadequately
15 protected tenants against bedbug infestations at the subject Apartment; (4) allowing and tolerating
16 a common practice and culture of extreme indifference by employees who do not properly inspect
17 and ensure that the Apartments are free from bedbug infestations; (5) not implementing adequate
18 policies and procedures prior to Plaintiffs’ injuries to prevent Cimex lectularius infestations; and
19 (6) not implementing any new policies and procedures after Plaintiffs’ injuries to prevent any
20 further Cimex lectularius infestations.
21 64. Plaintiffs are informed and believe, and thereon allege, that the aforesaid conduct
22 of Defendants, and DOES 1 through 20, was carried out with a willful and conscious disregard of
23 Plaintiffs’ right to be free from such tortious behavior, such as to constitute oppression, fraud or
24 malice pursuant to California Civil Code Section 3294, and that an officer, director, or managing
25 agent of Defendants, and DOES 1 through 20, authorized or ratified the wrongful acts of the
26 employees of Defendants, and DOES 1 through 20, entitling Plaintiffs to punitive damages in an
27 amount appropriate to punish and set an example of Defendants, and DOES 1 through 20.
28 //
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1 FOURTH CAUSE OF ACTION
2 By Plaintiffs Against All Defendants, and Does 1 Through 20, Inclusive
3 (Breach of Implied Warranty of Habitability)
4 65. Plaintiffs re-allege and incorporate by reference the allegations contained in the
5 preceding paragraphs of the Complaint as though fully set forth herein.
6 66. Plaintiffs and Defendants, and DOES 1 through 20, entered into a valid agreement
7 for the lease of an apartment unit, setting forth the terms surrounding Plaintiffs’ residency at the
8 CASA DE LUNA.
9 67. Implied in the lease agreement between Plaintiffs and Defendants, and DOES 1
10 through 20, is a warranty that the premises are and will be maintained in habitable condition.
11 68. During Plaintiffs’ stay, pursuant to California Civil Code § l94l.l, Defendants, and
12 DOES 1 through 20, violated each of the specific subdivisions, set forth below:
13 "A dwelling shall be deemed untenantable for purposes of Section l94l if it substantially
lacks any of the following affirmative standard characteristics or is a residential Premises
14 described in Section 17920.3 or 17920.10 of the Health and Safety Code:
15 (f) Building, grounds, and appurtenances at the time of the commencement of the lease or
rental agreement, and all areas under control of the landlord, kept in every part clean, sanitary, and
16 free from all accumulations of debris, filth, rubbish, garbage, rodents, and vermin.”
17 69. During Plaintiffs’ stay, pursuant to Health and Safety Code § 17920.3, Defendants,
18 and DOES 1 through 20, violated each of the specific subdivisions, set forth below:
19 "Any building or portion thereof including any dwelling Premises, guestroom or suite of
rooms, or the premises on which the same is located, in which there exists any of the following
20 listed conditions to an extent that endangers the life, limb, health, property, safety, or welfare of
the public of the occupants thereof shall be deemed and hereby is declared to be a substandard
21 building:
22 (a) Inadequate sanitation shall include, but not be limited to, the following:
(12) Infestation of insects, vermin, or rodents as determined by the health officer.
23 (13) General dilapidation or improper maintenance.
24 (c) Any nuisance.”
25 70. Defendants, and DOES 1 through 20, have breached the implied warranty of
26 habitability by leasing, operating and maintaining the CASA DE LUNA in an untenantable
27 condition as set forth above and defined by, but not limited to, California Civil Code § l941.1 and
28 California Health and Safety Code §17920.3.
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29 COMPLAINT FOR DAMAGES
30
1 71. The Apartment leased to Plaintiffs substantially lacked cleanliness, sanitation, and
2 was not free from accumulations of debris, filth, rubbish, garbage, insects and/or vermin. The
3 Apartment was uninhabitable, in breach of the implied warranty of habitability.
4 72. These substandard conditions were not caused by acts or omissions of Plaintiffs.
5 73. Defendants, and DOES 1 through 20, had actual and constructive knowledge of the
6 substandard conditions as Plaintiffs placed management on notice on multiple occasions and any
7 bedbug infestations could have been discovered through reasonable inspection.
8 74. Defendants, and DOES 1 through 20, authorized or ratified the conduct of the
9 Apartment employees by: (1) not terminating such employees responsible for Plaintiffs’ injuries;
10 (2) not training or retraining such employees regarding Cimex lectularius (“bedbug”) infestations;
11 (3) turning a blind eye to complaints and not terminating Management who has inadequately
12 protected tenants against bedbug infestations at the subject Apartment; (4) allowing and tolerating
13 a common practice and culture of extreme indifference by employees who do not properly inspect
14 and ensure that the Apartments are free from bedbug infestations; (5) not implementing adequate
15 policies and procedures prior to Plaintiffs’ injuries to prevent Cimex lectularius infestations; and
16 (6) not implementing any new policies and procedures after Plaintiffs’ injuries to prevent any
17 further Cimex lectularius infestations.
18 75. As a direct and proximate result of these breaches of duty by Defendants’, and
19 DOES 1 through 20, Plaintiffs continue to suffer physical and psychological injuries, and suffered
20 medical expenses for their physical and psychological injuries specifically alleged above, loss of
21 and damage to personal property, and other expenses, all to Plaintiffs’ damage in an amount to be
22 shown according to proof and within the jurisdiction of the Court.
23 76. As a direct, legal and proximate result of these breaches of duty by Defendants, and
24 DOES 1 through 20, Plaintiffs were compelled to and did employ the services of hospitals,
25 physicians and surgeons, nurses, and the like, to care for and treat them, and did incur hospital,
26 medical, professional and incidental expenses, and Plaintiffs are informed and believe, and
27 thereon allege, that they will necessarily by reason of their injuries, incur additional like expenses
28 for an indefinite period of time in the future, all to Plaintiffs’ damage in a sum to be shown
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29
Preview
Ilan N. Rosen Janfaza (State Bar No. 298078) E-FILED 1 Law Offices of Ilan N. Rosen Janfaza, A.P.C. 12/3/2020 5:28 PM 9025 Wilshire Blvd., Penthouse Floor Superior Court of California 2 Beverly Hills, CA 90211 Telephone: (310) 550-6000 County of Fresno 3 Facsimile: (310) 861-9000 By: A. Rodriguez, Deputy Email: ilan@hotelinjurylaw.com 4 Attorneys for Plaintiffs 5 KAYLA BROWN, BRYNIN BROWN, NATHAN CASTANEDA, 6 and EMMA BROWN 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF FRESNO 10 KAYLA BROWN; BRYNIN Case No. 20CECG03545 11 BROWN; NATHAN CASTANEDA; EMMA BROWN, a minor, by Kayla Unlimited Jurisdiction 12 Brown, as her guardian ad litem, COMPLAINT FOR DAMAGES 13 Plaintiffs, 1. Battery 14 2. Negligence v. 3. Intentional Infliction of Emotional Distress 15 4. Breach of Implied Warranty of Habitability CASA DE LUNA; SAN MAR 5. Breach of Covenant of Quiet Enjoyment 16 PROPERTIES, INC.; MARC A. 6. Violation of Civil Code Section 1942.4 WILSON; JACQUELINE TAPIA; 7. Private Nuisance 17 BRITIANY GARCIA; and DOES 1 8. Public Nuisance through 20, inclusive, 18 (Demand for Jury Trial) Defendants. 19 20 Plaintiffs, KAYLA BROWN; BRYNIN BROWN; NATHAN CASTANEDA and 21 EMMA BROWN, complain of and allege as follows: 22 I. INTRODUCTION 23 1. This action arises out of personal injury and monetary damages sustained by 24 Plaintiffs as a result of bedbug bites during their stay at an apartment complex owned and operated 25 by Defendants in Fresno, California. 26 2. Plaintiffs, KAYLA BROWN; BRYNIN BROWN; NATHAN CASTANEDA; and 27 EMMA BROWN (individually, respectively, “Ms. Kayla Brown,” “Ms. Brynin Brown,” “Mr. 28 -1- 29 COMPLAINT FOR DAMAGES 30 1 Nathan Castaneda,” and “Ms. Emma Brown,” collectively, “Plaintiffs”) bring this action against 2 Defendants, CASA DE LUNA; SAN MAR PROPERTIES, INC.; MARC A. WILSON; 3 JACQUELINE TAPIA; BRITIANY GARCIA; and DOES 1 through 20, inclusive (collectively, 4 “Defendants”). 5 II. PARTIES 6 3. At all times mentioned herein, Plaintiffs are residents of the State of California. 7 4. At all times mentioned herein, Plaintiffs are informed, believe and thereon allege 8 that Defendant, CASA DE LUNA is doing business in Fresno, California as CASA DE LUNA, 9 located at 5175 N Fresno St, Fresno, CA 93710. 10 5. At all times mentioned herein, Plaintiff is informed, believes and thereon alleges 11 that Defendant, SAN MAR PROPERTIES, INC., a California corporation with its principal 12 executive offices in Fresno, CA, is the parent corporation of CASA DE LUNA, located at 5175 N 13 Fresno St, Fresno, CA 93710. 14 6. At all times mentioned herein, Plaintiffs are informed, believe and thereon allege 15 that Defendant, MARC A. WILSON, an individual, with offices at 6356 N. Fresno St, Fresno, CA 16 93710, operates, and manages SAN MAR PROPERTIES, INC., a parent corporation of CASA DE 17 LUNA, located at 5175 N Fresno St, Fresno, CA 93710. 18 7. At all times mentioned herein, Plaintiffs are informed, believe and thereon allege 19 that Defendant, JACQUELINE TAPIA, an individual, with offices at 6477 Van Nuys Blvd. Van 20 Nuys, CA 91405, operates, and manages CASA DE LUNA, located at 5175 N Fresno St, Fresno, 21 CA 93710. 22 8. At all times mentioned herein, Plaintiffs are informed, believe and thereon allege 23 that Defendant, BRITIANY GARCIA, an individual, with offices at 6477 Van Nuys Blvd. Van 24 Nuys, CA 91405, operates, and manages CASA DE LUNA, located at 5175 N Fresno St, Fresno, 25 CA 93710 (hereinafter, referred to as the “Casa De Luna” or the “Apartment”). 26 9. Plaintiffs are ignorant of the true identity and capacity of Defendants designated as 27 DOES 1 through 20, but will amend the Complaint when their identities have been ascertained 28 according to proof at the time of trial. Plaintiffs allege on information and belief that each and -2- 29 COMPLAINT FOR DAMAGES 30 1 every DOE Defendant is in some manner responsible for the acts and conduct of other Defendants, 2 and were and are, responsible for the injuries, damages and harm incurred by Plaintiffs. 3 10. Plaintiffs are informed, believe and thereon allege, that at all times relevant during 4 the liability period, that Defendants, and each of them, including without limitation those 5 Defendants herein sued as DOES, were acting in concert or participating with each other, or were 6 joint participants and collaborators in the acts complained of, and were the agents or employees of 7 others in doing the acts complained of herein, each and all of them acting within the course and 8 scope of said agency and/or employment by others, each and all of them acting in concert with the 9 other and all together. 10 III. VENUE AND JURISDICTION 11 11. Venue is proper in this Court because the injuries alleged in this Complaint 12 occurred within the County of Fresno. 13 12. This Court has unlimited jurisdiction over the parties named in this Complaint as 14 the amount in controversy exceeds $25,000. Defendants are subject to the personal jurisdiction of 15 this Court. 16 IV. FACTS AND ALLEGATIONS COMMON TO ALL CAUSES OF ACTION 17 13. According to the Centers for Disease Control and Prevention (the “CDC”), Cimex 18 lectularius, more commonly known as “bed bugs,” are “small, flat, parasitic insects that feed 19 solely on the blood of people and animals while they sleep.” They are “found across the globe 20 from North and South America, to Africa, Asia and Europe. Although the presence of bed bugs 21 has traditionally been seen as a problem in developing countries, it has recently been spreading 22 rapidly to parts of the United States, Canada, the United Kingdom, and other parts of Europe. Bed 23 bugs have been found in five-star Apartments and resorts and their presence is not determined by 24 the cleanliness of the living conditions where they are found.” (See 25 www.cdc.gov/parasites/bedbugs/ accessed November 1, 2020). 26 14. According to the CDC, “one of the easiest ways to identify a bed bug infestation is 27 by the tell-tale bite marks on the face, neck, arms, hands, or any other body parts while sleeping.” 28 Additionally, “because bed bug bites affect everyone differently, some people may have no -3- 29 COMPLAINT FOR DAMAGES 30 1 reaction and will not develop bite marks or any other visible signs of being bitten. Other people 2 may be allergic to the bed bugs and can react adversely to the bites. These allergic symptoms can 3 include enlarged bite marks, painful swellings at the bite site, and, on rare occasions, 4 anaphylaxis.” (See www.cdc.gov/parasites/bedbugs/faqs.html accessed November 1, 2020). 5 15. It is also known that bedbugs are able to travel between rooms in an apartment 6 complex [see https://www.health.ny.gov/environmental/pests/bedbugs.htm, accessed November 1, 7 2020], requiring thorough inspection and treatment of adjacent rooms when bedbug activity is 8 found in an apartment complex. 9 16. On or about December 7, 2018, Plaintiffs, Kayla Brown and Brynin Brown signed 10 a lease at the CASA DE LUNA. They moved in along with their young daughter, Plaintiff, Emma 11 Brown, and was provided Apartment# 264 (hereinafter, referred to as “Plaintiffs’ Apartment”). 12 17. Plaintiff, Mr. Nathan Castaneda, also moved into the apartment. 13 18. On or about October 3, 2020, Plaintiffs began to experience an intense itching 14 sensation and bite marks all over their bodies. Soon after, upon inspection of their apartment, 15 Plaintiffs noticed that there are bed bugs. 16 19. On or about October 5, 2020, Plaintiffs notified the apartment manager regarding 17 the incident. Plaintiffs were told they would be put on a waiting list. 18 20. On or about October 8, 2020, an inspector came to the apartment unit, and 19 subsequently discovered bed bugs. 20 21. On or about October 9, 2020, Mr. Nathan Castaneda, spoke with the apartment 21 management, requesting that they inspect the other units for bed bugs. Plaintiffs noticed a hole 22 next to a power outlet in the apartment and questioned whether the infestation came from another 23 apartment unit. However, the apartment manager refused to inspect the other units. 24 22. On or about October 14, 2020, Mr. Castaneda requested that the pest control 25 treatment be paid for by the apartment management, as the incident was not caused by Plaintiffs. 26 However, leasing agent, BRITIANY GARCIA, refused. 27 23. On or about October 26, 2020, an exterminator came to perform a heat treatment on 28 the apartment unit. A week later, the apartment was given chemical treatment. -4- 29 COMPLAINT FOR DAMAGES 30 1 24. The apartment also has a prior and/or ongoing history of bedbug infestations and 2 guests complaining of such infestations. As of the date of this Complaint, at least one prior 3 complaint in reviews discussing experiences of bedbugs at the apartment is listed on the website, 4 www.apartmentratings.com. 5 25. Defendants, and DOES 1 through 20, deliberately and recklessly chose not to 6 inspect or otherwise ensure that Plaintiffs’ Apartment, and neighboring apartments, were free of 7 Cimex lectularius (“bedbugs”) immediately after Plaintiffs notified management of the bedbug 8 problem in the Apartment, willfully disregarding knowledge of a bedbug infestation, and DOES 1 9 through 20. 10 26. Although Defendants, and DOES 1 through 20, were put on notice on multiple 11 occasions of a bedbug infestation in the CASA DE LUNA, Defendants, and DOES 1 through 20, 12 failed to eradicate such infestations, including an infestation in the Apartment that Plaintiffs 13 resided in. 14 27. Defendants, and DOES 1 through 20, deliberately chose not to remedy, or 15 otherwise failed to remedy the presence of Cimex lectularius (“bedbugs”) in Plaintiffs’ Apartment 16 and surrounding apartments. 17 28. Defendants, and DOES 1 through 20, knew that this Apartment Complex had a 18 bedbug infestation, and deliberately and recklessly chose to turn a blind eye to this infestation and 19 other tenant complaints. 20 29. Management did not place adequate safeguards to protect clients from an ongoing 21 bedbug exposure. Management, who oversaw these infestations, has not been replaced by 22 Defendants, and DOES 1 through 20, nor has management changed any procedures to safeguard 23 their tenants against bedbug infestations and inadequate oversight. 24 30. Defendants’, and DOES 1 through 20, actions before, during, and after Plaintiffs’ 25 injury, including Management’s routine practice of authorizing staff to not properly inspect and 26 ensure that Plaintiffs’ Apartment and the surrounding apartments are free from bedbugs after a 27 tenant complaint, show that Defendants, and DOES 1 through 20, have a pattern and culture of 28 extreme indifference and reckless disregard for the value of human life and the rights of their -5- 29 COMPLAINT FOR DAMAGES 30 1 tenants. 2 31. As part of Defendants’, and DOES 1 through 20, pattern and culture of extreme 3 indifference, Management did not implement adequate policies and procedures to sufficiently train 4 employees of the Apartment to inspect rooms for bedbug infestations and to protect Apartment 5 tenants from exposure to bedbug infestations. 6 32. Defendants, and DOES 1 through 20, authorized or ratified the conduct of the 7 Apartment employees by: (1) not terminating such employees responsible for Plaintiffs’ injuries; 8 (2) not training or retraining such employees regarding Cimex lectularius (“bedbug”) infestations; 9 (3) turning a blind eye to complaints and not terminating Management who has inadequately 10 protected tenants against bedbug infestations at the subject Apartment; (4) allowing and tolerating 11 a common practice and culture of extreme indifference by employees who do not properly inspect 12 and ensure that the Apartments are free from bedbug infestations; (5) not implementing adequate 13 policies and procedures prior to Plaintiffs’ injuries to prevent Cimex lectularius infestations; and 14 (6) not implementing any new policies and procedures after Plaintiffs’ injuries to prevent any 15 further Cimex lectularius infestations. 16 33. At no time, either prior to or subsequent to, Plaintiffs’ stay at the CASA DE 17 LUNA, have Plaintiffs observed bedbugs in their residence or experienced bites from bedbugs in 18 their residence. 19 34. Plaintiffs suffered and continue to suffer physical injuries (including, but not 20 limited to, bedbug bites, itching, and allergic reactions to the bedbug bites) and emotional injuries 21 (including, but not limited to, severe embarrassment, annoyance, discomfort, pain, apprehension, 22 tension, anxiety, and emotional distress) as a direct result of their stay at the CASA DE LUNA. 23 V. CLAIMS FOR RELIEF 24 FIRST CAUSE OF ACTION 25 By Plaintiffs Against All Defendants, and Does 1-20, Inclusive 26 (Battery) 27 35. Plaintiffs re-allege and incorporate by reference the allegations contained in the 28 preceding paragraphs of the Complaint as though fully set forth herein. -6- 29 COMPLAINT FOR DAMAGES 30 1 36. During Plaintiffs’ stay, Defendants, and DOES 1 through 20, intentionally and 2 recklessly did acts that were unconsented to by Plaintiffs and therefore resulted in offensive 3 contact with their person, including but not limited to: (1) Defendants’, and DOES 1 through 20, 4 deliberate choice not to eradicate a Cimex lectularius infestation in the Apartment; (2) 5 Defendants’, and DOES 1 through 20, deliberate choice not to inspect or ensure that Plaintiffs’ 6 Apartment, was free of Cimex lectularius immediately after Plaintiffs complained to the 7 Management on multiple occasions; (3) Defendants’, and DOES 1 through 20, deliberate and 8 reckless choice not to inspect the bed skirts in Plaintiffs’ Apartment to protect against and prevent 9 a Cimex lectularius infestation; (4) Defendants’, and DOES 1 through 20, willful disregard of a 10 Cimex lectularius infestation that was known to Defendants, and DOES 1 through 20, due to 11 infestations in Plaintiffs’ Apartment; (5) Defendants’ deliberate and reckless choice not to notify 12 Plaintiffs of the presence of Cimex lectularius in the surrounding apartments. 13 37. Defendants, and DOES 1 through 20, did the aforementioned acts with the intent to 14 cause a harmful or offensive contact with the body of Plaintiffs, or with a reckless disregard of the 15 probability of causing such offensive contact. 16 38. Defendants, and DOES 1 through 20, authorized or ratified the conduct of the 17 Apartment employees by: (1) not terminating such employees responsible for Plaintiffs’ injuries; 18 (2) not training or retraining such employees regarding Cimex lectularius (“bedbug”) infestations; 19 (3) turning a blind eye to complaints and not terminating Management who has inadequately 20 protected tenants against bedbug infestations at the subject Apartment; (4) allowing and tolerating 21 a common practice and culture of extreme indifference by employees who do not properly inspect 22 and ensure that the Apartments are free from bedbug infestations; (5) not implementing adequate 23 policies and procedures prior to Plaintiffs’ injuries to prevent Cimex lectularius infestations; and 24 (6) not implementing any new policies and procedures after Plaintiffs’ injuries to prevent any 25 further Cimex lectularius infestations. 26 39. As a direct, legal and proximate result of the actions of Defendants, and DOES 1 27 through 20, Plaintiffs sustained serious injuries to their person, all to Plaintiffs’ damage in an 28 amount to be shown according to proof and within the jurisdiction of the Court. -7- 29 COMPLAINT FOR DAMAGES 30 1 40. As a direct, legal and proximate result of the aforesaid acts of Defendants, and 2 DOES 1 through 20, Plaintiffs were compelled to and did employ the services of hospitals, 3 physicians and surgeons, nurses, and the like, to care for and treat them, and did incur hospital, 4 medical, professional and incidental expenses, and Plaintiffs are informed and believe, and upon 5 such information and belief allege, that they will necessarily by reason of their injuries, incur 6 additional like expenses for an indefinite period of time in the future, all to Plaintiffs’ damage in a 7 sum to be shown according to proof. 8 41. Plaintiffs are informed and believe, and thereon allege, that the aforesaid conduct 9 of Defendants, and DOES 1 through 20, was carried out with a willful and conscious disregard of 10 Plaintiffs’ right to be free from such tortious behavior, such as to constitute oppression, fraud or 11 malice pursuant to California Civil Code Section 3294, and that an officer, director, or managing 12 agent of Defendants, and DOES 1 through 20, authorized or ratified the wrongful acts of the 13 employees of Defendants, and DOES 1 through 20, entitling Plaintiffs to punitive damages in an 14 amount appropriate to punish and set an example of Defendants, and DOES 1 through 20. 15 SECOND CAUSE OF ACTION 16 By Plaintiffs Against All Defendants, and Does 1-20, Inclusive 17 (Negligence) 18 42. Plaintiffs re-allege and incorporate by reference the allegations contained in the 19 preceding paragraphs of the Complaint as though fully set forth herein. 20 43. At all times relevant hereto, as owners, operators, and managers of the Apartment, 21 the Defendants, and DOES 1 through 20, owed Plaintiffs the duty to exercise reasonable care in 22 the operation and maintenance of the Apartment. This duty includes, but is not limited to: the 23 duty of Defendants, and DOES 1 through 20, to maintain the Apartment in a safe and habitable 24 condition and to keep it free from insect infestations, namely infestations of Cimex lectularius, for 25 the entire duration of Plaintiffs’ tenancy. 26 44. Defendants, and DOES 1 through 20, breached the above duties when they, among 27 other things: 28 (1) allowed an infestation of Cimex lectularius to become established in -8- 29 COMPLAINT FOR DAMAGES 30 1 Plaintiffs’ Apartment of the CASA DE LUNA; 2 (2) failed to eradicate a bedbug infestation in Plaintiffs’ Apartment after being 3 placed on notice by Plaintiffs on multiple occasions; and 4 (3) chose not to inspect and did not ensure that the bed in Plaintiffs’ Apartment 5 was free from bedbugs after Plaintiffs complained to Management on 6 multiple occasions; and 7 (4) failed to have an exterminator properly inspect Plaintiffs’ Apartment and 8 neighboring apartments of the presence of Cimex lectularius after being 9 placed on notice on multiple occasions by Plaintiffs of a bedbug infestation. 10 45. The acts by Defendants, and DOES 1 through 20, as enumerated in the above 11 paragraph, want of even scant care represent an extreme departure from the ordinary standard of 12 conduct for Apartments, thereby rising to the level of gross negligence. 13 46. As a direct and proximate result of these breaches of duty by Defendants, and 14 DOES 1 through 20, Plaintiffs suffered bedbug bites, and continues to suffer physical and 15 psychological injury. 16 47. Defendants, and DOES 1 through 20, performed the acts enumerated in paragraph 17 44, for which they knew, or should have known, would be highly probable that Plaintiffs would be 18 bitten by bedbugs and harm would result. 19 48. Defendants, and DOES 1 through 20, have a statutory duty under California Health 20 & Safety Code Section 17920.3 to ensure that in their Apartment there does not exist inadequate 21 sanitation “that endangers the life, limb, health, property, safety, or welfare of the public or the 22 occupants thereof.” Section 17920.3(a)(12) specifically defines inadequate sanitation to include 23 “infestation of insects, vermin, or rodents” as determined by a health officer or code enforcement 24 officer. California Health & Safety Code Section 17920.3 states: “Any building or portion 25 thereof including any dwelling unit, guestroom or suite of rooms, or the premises on which the 26 same is located, in which there exists any of the following listed conditions to an extent that 27 endangers the life, limb, health, property, safety, or welfare of the public or the occupants thereof 28 shall be deemed and hereby is declared to be a substandard building: (a) Inadequate sanitation -9- 29 COMPLAINT FOR DAMAGES 30 1 shall include, but not be limited to, the following: …(12) Infestation of insects, vermin, or rodents 2 as determined by a health officer or, if an agreement does not exist with an agency that has a 3 health officer, the infestation can be determined by a code enforcement officer, as defined in 4 Section 829.5 of the Penal Code, upon successful completion of a course of study in the 5 appropriate subject matter as determined by the local jurisdiction.” 6 49. Additionally, Title 25, Chapter 1, Subchapter 1, § 40 of California State Housing 7 Law states, in part: “In every apartment house or motel, every part of every bed, including the 8 mattress, sheets, blankets, and bedding shall be kept in a clean, dry sanitary condition, free from 9 filth, urine, or other foul matter, and from the infection of lice, bedbugs or other insects.” 10 50. Defendants, and DOES 1 through 20, violated the above laws, which were 11 designed to protect occupants of Apartments, when they: (1) allowed an infestation of Cimex 12 lectularius to become established Plaintiffs’ Apartment; and (2) did not ensure that Plaintiffs’ 13 Apartment was free from bedbugs once being placed on notice by Plaintiffs of a Cimex lectularius 14 infestation. Accordingly, Defendants’, and DOES 1 through 20, actions were negligent as a 15 matter of law. 16 51. The injuries suffered by Plaintiffs in this case were occurrences the nature of which 17 the state statutes and regulations were designed to prevent and Plaintiffs are within the class of 18 persons whom such statutes and regulations are intended to protect. 19 52. At all times relevant hereto, Defendants, and DOES 1 through 20, owed a duty to 20 Plaintiffs to act reasonably so as not to cause Plaintiffs to suffer unreasonable mental suffering. 21 Said Defendants, and DOES 1 through 20, breached this duty by causing foreseeable and 22 unreasonable distress to Plaintiffs. 23 53. As a direct and proximate result of Defendants’, and DOES 1 through 20, herein 24 alleged conduct, Plaintiffs suffered and continue to suffer extreme and severe embarrassment, 25 annoyance, discomfort, pain, apprehension, tension, anxiety, and emotional distress. 26 54. Defendants, and DOES 1 through 20, authorized or ratified the conduct of the 27 Apartment employees by: (1) not terminating such employees responsible for Plaintiffs’ injuries; 28 (2) not training or retraining such employees regarding Cimex lectularius (“bedbug”) infestations; -10- 29 COMPLAINT FOR DAMAGES 30 1 (3) turning a blind eye to complaints and not terminating Management who has inadequately 2 protected tenants against bedbug infestations at the subject Apartment; (4) allowing and tolerating 3 a common practice and culture of extreme indifference by employees who do not properly inspect 4 and ensure that the Apartments are free from bedbug infestations; (5) not implementing adequate 5 policies and procedures prior to Plaintiffs’ injuries to prevent Cimex lectularius infestations; and 6 (6) not implementing any new policies and procedures after Plaintiffs’ injuries to prevent any 7 further Cimex lectularius infestations. 8 55. As a direct and proximate result of these breaches of duty by Defendants’, and 9 DOES 1 through 20, Plaintiffs continue to suffer physical and psychological injuries, and suffered 10 medical expenses for their physical and psychological injuries specifically alleged above, loss of 11 and damage to personal property, and other expenses, all to Plaintiffs’ damage in an amount to be 12 shown according to proof and within the jurisdiction of the Court. 13 56. As a direct, legal and proximate result of these breaches of duty by Defendants, and 14 DOES 1 through 20, Plaintiffs were compelled to and did employ the services of hospitals, 15 physicians and surgeons, nurses, and the like, to care for and treat them, and did incur hospital, 16 medical, professional and incidental expenses, and Plaintiffs are informed and believe, and 17 thereon allege, that they will necessarily by reason of their injuries, incur additional like expenses 18 for an indefinite period of time in the future, all to Plaintiffs’ damage in a sum to be shown 19 according to proof. 20 57. Plaintiffs are informed and believe, and thereon allege, that the aforesaid conduct 21 of Defendants, and DOES 1 through 20, was carried out with a willful and conscious disregard of 22 Plaintiffs’ right to be free from such tortious behavior, such as to constitute oppression, fraud or 23 malice pursuant to California Civil Code Section 3294, and that an officer, director, or managing 24 agent of Defendants, and DOES 1 through 20, authorized or ratified the wrongful acts of the 25 employees of Defendants, and DOES 1 through 20, entitling Plaintiffs to punitive damages in an 26 amount appropriate to punish and set an example of Defendants, and DOES 1 through 20. 27 // 28 // -11- 29 COMPLAINT FOR DAMAGES 30 1 THIRD CAUSE OF ACTION 2 By Plaintiffs Against All Defendants, and Does 1-20, Inclusive 3 (Intentional Infliction of Emotional Distress) 4 58. Plaintiffs re-allege and incorporate by reference the allegations contained in the 5 preceding paragraphs of the Complaint as though fully set forth herein. 6 59. The actions of Defendants, and DOES 1 through 20, were intentional, extreme, and 7 outrageous—namely, because of the following egregious and reckless conduct: (1) Defendants’, 8 and DOES 1 through 20, willful disregard of a Cimex lectularius infestation that was either known 9 or should have been known from other infestations in Plaintiffs’ Apartment and neighboring 10 apartments; (2) Defendants’, and DOES 1 through 20, deliberate and reckless choice to abstain 11 from inspecting Plaintiffs’ Apartment after being placed on notice by Plaintiffs of the presence of 12 Cimex lectularius in Plaintiffs’ Apartment; (3) Defendants’, and DOES 1 through 20, deliberate 13 choice not to eradicate a bedbug infestation in Plaintiffs’ Apartment, which was made aware to 14 Defendants, and DOES 1 through 20; (4) Defendants’, and DOES 1 through 20, deliberate and 15 reckless choice not to inspect and ensure that the bed skirts are free from a Cimex lectularius 16 infestation immediately after Plaintiffs’ complaints on multiple occasions; (5) Defendants’, and 17 DOES 1 through 20, routine practice of showing extreme indifference to the danger of bedbug 18 infestations; (6) Defendants’, and DOES 1 through 20, failure to have adequate policies and 19 procedures to properly train employees of the CASA DE LUNA to inspect rooms for bedbug 20 infestations and to adequately protect Apartment tenants from an exposure to bedbug infestations; 21 and (7) Defendants’, and DOES 1 through 20, failure to implement any new policies and 22 procedures after Plaintiffs’ injuries to prevent any further Cimex lectularius infestations in 23 Plaintiffs’ Apartment, which again exemplifies their extreme indifference to the rights of their 24 tenants and the value of the human life. 25 60. Defendants’, and DOES 1 through 20, actions were done with the intent to cause 26 serious emotional distress or with reckless disregard of the probability of causing Plaintiffs serious 27 emotional distress. 28 61. As a direct, legal and proximate result of the actions of Defendants, and DOES 1 -12- 29 COMPLAINT FOR DAMAGES 30 1 through 20, Plaintiffs suffered severe emotional distress that has caused Plaintiffs to sustain 2 severe, serious and permanent injuries to their person, all to Plaintiffs’ damage in a sum to be 3 shown according to proof and within the jurisdiction of the Superior Court. 4 62. As a direct, legal and proximate result of the aforesaid actions of Defendants, and 5 DOES 1 through 20, Plaintiffs were compelled to and did employ the services of hospitals, 6 physicians and surgeons, nurses, and the like, to care for and treat them, and did incur hospital, 7 medical, professional and incidental expenses, and Plaintiffs are informed and believe, and upon 8 such information and belief allege, that they will necessarily by reason of their injuries, incur 9 additional like expenses for an indefinite period of time in the future, all to Plaintiffs’ damage in a 10 sum to be shown according to proof. 11 63. Defendants, and DOES 1 through 20, authorized or ratified the conduct of the 12 Apartment employees by: (1) not terminating such employees responsible for Plaintiffs’ injuries; 13 (2) not training or retraining such employees regarding Cimex lectularius (“bedbug”) infestations; 14 (3) turning a blind eye to complaints and not terminating Management who has inadequately 15 protected tenants against bedbug infestations at the subject Apartment; (4) allowing and tolerating 16 a common practice and culture of extreme indifference by employees who do not properly inspect 17 and ensure that the Apartments are free from bedbug infestations; (5) not implementing adequate 18 policies and procedures prior to Plaintiffs’ injuries to prevent Cimex lectularius infestations; and 19 (6) not implementing any new policies and procedures after Plaintiffs’ injuries to prevent any 20 further Cimex lectularius infestations. 21 64. Plaintiffs are informed and believe, and thereon allege, that the aforesaid conduct 22 of Defendants, and DOES 1 through 20, was carried out with a willful and conscious disregard of 23 Plaintiffs’ right to be free from such tortious behavior, such as to constitute oppression, fraud or 24 malice pursuant to California Civil Code Section 3294, and that an officer, director, or managing 25 agent of Defendants, and DOES 1 through 20, authorized or ratified the wrongful acts of the 26 employees of Defendants, and DOES 1 through 20, entitling Plaintiffs to punitive damages in an 27 amount appropriate to punish and set an example of Defendants, and DOES 1 through 20. 28 // -13- 29 COMPLAINT FOR DAMAGES 30 1 FOURTH CAUSE OF ACTION 2 By Plaintiffs Against All Defendants, and Does 1 Through 20, Inclusive 3 (Breach of Implied Warranty of Habitability) 4 65. Plaintiffs re-allege and incorporate by reference the allegations contained in the 5 preceding paragraphs of the Complaint as though fully set forth herein. 6 66. Plaintiffs and Defendants, and DOES 1 through 20, entered into a valid agreement 7 for the lease of an apartment unit, setting forth the terms surrounding Plaintiffs’ residency at the 8 CASA DE LUNA. 9 67. Implied in the lease agreement between Plaintiffs and Defendants, and DOES 1 10 through 20, is a warranty that the premises are and will be maintained in habitable condition. 11 68. During Plaintiffs’ stay, pursuant to California Civil Code § l94l.l, Defendants, and 12 DOES 1 through 20, violated each of the specific subdivisions, set forth below: 13 "A dwelling shall be deemed untenantable for purposes of Section l94l if it substantially lacks any of the following affirmative standard characteristics or is a residential Premises 14 described in Section 17920.3 or 17920.10 of the Health and Safety Code: 15 (f) Building, grounds, and appurtenances at the time of the commencement of the lease or rental agreement, and all areas under control of the landlord, kept in every part clean, sanitary, and 16 free from all accumulations of debris, filth, rubbish, garbage, rodents, and vermin.” 17 69. During Plaintiffs’ stay, pursuant to Health and Safety Code § 17920.3, Defendants, 18 and DOES 1 through 20, violated each of the specific subdivisions, set forth below: 19 "Any building or portion thereof including any dwelling Premises, guestroom or suite of rooms, or the premises on which the same is located, in which there exists any of the following 20 listed conditions to an extent that endangers the life, limb, health, property, safety, or welfare of the public of the occupants thereof shall be deemed and hereby is declared to be a substandard 21 building: 22 (a) Inadequate sanitation shall include, but not be limited to, the following: (12) Infestation of insects, vermin, or rodents as determined by the health officer. 23 (13) General dilapidation or improper maintenance. 24 (c) Any nuisance.” 25 70. Defendants, and DOES 1 through 20, have breached the implied warranty of 26 habitability by leasing, operating and maintaining the CASA DE LUNA in an untenantable 27 condition as set forth above and defined by, but not limited to, California Civil Code § l941.1 and 28 California Health and Safety Code §17920.3. -14- 29 COMPLAINT FOR DAMAGES 30 1 71. The Apartment leased to Plaintiffs substantially lacked cleanliness, sanitation, and 2 was not free from accumulations of debris, filth, rubbish, garbage, insects and/or vermin. The 3 Apartment was uninhabitable, in breach of the implied warranty of habitability. 4 72. These substandard conditions were not caused by acts or omissions of Plaintiffs. 5 73. Defendants, and DOES 1 through 20, had actual and constructive knowledge of the 6 substandard conditions as Plaintiffs placed management on notice on multiple occasions and any 7 bedbug infestations could have been discovered through reasonable inspection. 8 74. Defendants, and DOES 1 through 20, authorized or ratified the conduct of the 9 Apartment employees by: (1) not terminating such employees responsible for Plaintiffs’ injuries; 10 (2) not training or retraining such employees regarding Cimex lectularius (“bedbug”) infestations; 11 (3) turning a blind eye to complaints and not terminating Management who has inadequately 12 protected tenants against bedbug infestations at the subject Apartment; (4) allowing and tolerating 13 a common practice and culture of extreme indifference by employees who do not properly inspect 14 and ensure that the Apartments are free from bedbug infestations; (5) not implementing adequate 15 policies and procedures prior to Plaintiffs’ injuries to prevent Cimex lectularius infestations; and 16 (6) not implementing any new policies and procedures after Plaintiffs’ injuries to prevent any 17 further Cimex lectularius infestations. 18 75. As a direct and proximate result of these breaches of duty by Defendants’, and 19 DOES 1 through 20, Plaintiffs continue to suffer physical and psychological injuries, and suffered 20 medical expenses for their physical and psychological injuries specifically alleged above, loss of 21 and damage to personal property, and other expenses, all to Plaintiffs’ damage in an amount to be 22 shown according to proof and within the jurisdiction of the Court. 23 76. As a direct, legal and proximate result of these breaches of duty by Defendants, and 24 DOES 1 through 20, Plaintiffs were compelled to and did employ the services of hospitals, 25 physicians and surgeons, nurses, and the like, to care for and treat them, and did incur hospital, 26 medical, professional and incidental expenses, and Plaintiffs are informed and believe, and 27 thereon allege, that they will necessarily by reason of their injuries, incur additional like expenses 28 for an indefinite period of time in the future, all to Plaintiffs’ damage in a sum to be shown -15- 29