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BY FAX
Tele? 610-901-0010 / Fax: 510-560-3590
Email: jonathan@bornsteiniaw.com
J.H. Bornstein — Attorney At Law
2701 Telegraph Ave., Ste. 200, Oakland, CA 94612
OR. SINAL
JONATHAN HERSCHEL BORNSTEIN (SBN 163392)
J.H. BORNSTEIN - ATTORNEY AT LAW
2701 Telegraph Avenue, Suite 200
Oakland, CA 94612-1715 Son Franttog te Cb N
Telephone: (510) 901-0010 unty Superior Court
Facsimile: (510) 560-3590 JAN 29 2020
Email: jonathan@bornsteinlaw.com
CLERK OF FHE,C
Attorneys for Plaintiffs BY: ‘OURT
Georgia Walker and Ray Murillo Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
— UNLIMITED CIVIL JURISDICTION —
CIVIC CENTER COURTHOUSE
GEORGIA WALKER AND RAY MURILLO, __)_ Case Number:
) -
Plaintiffs, ) COMPLAINT FOR PERSONAL INJURIES,
) DAMAGES AND INJUNCTIVE RELIEF:
v.
Negligence (including Negligence Per Se);
AIRBNB, INC., a Delaware Corporation, AND Intrusion of Privacy;
DOES 1 - 50, INCLUSIVE, rau.
Negligent Misrepresentation;
Intentional Infliction of Emotional Distress;
Negligent Infliction of Emotional Distress; and
Unfair Competition (B&P § 17200, et sq.)
Defendants.
ere ree SSE EH WY
ONAWALN SE
Plaintiffs Georgia Walker and Ray Murillo (hereinafter collectively “plaintiff’) by this complaint
against defendant Airbnb, Inc., a Delaware corporation, and Does 1-50, inclusive (hereinafter collectively
“defendant”) hereby allege causes of action against defendant for having a hidden camera recording
plaintiffs in violation of their right to privacy, and breach of defendants’ promises and duties for which
defendants were provided renumeration, among other things, as follows:
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Complaint for Personal Injuries, Damages and Injunctive ReliefJ.H. Bornstein — Attorney At Law
2701 Telegraph Ave., Ste. 200, Oakland, CA 94612
Tele: 510-901-0010 / Fax: 510-560-3590
Email: jonathan@bornsteinlaw.com
PARTIES
1. At all relevant times stated herein, plaintiffs Georgia Walker and Ray Murillo were over
the age of eighteen (18) years, and reside in the City of San Jose, Count of Santa Clara and State of
California.
2. At all relevant times stated herein, each and every defendant was a resident the City and
County of San Francisco and State of California, and/or conducted business therein.
3. At all relevant times stated herein, Defendant Airbnb, Inc. (hereinafter “Airbnb”) is a
Delaware corporation with a principal place of business in the City and County of San Francisco, and
State of California.
4, Plaintiff requests a jury trial.
5. Plaintiff is presently unaware of the true names and capacities, whether individual,
associate, corporate, or otherwise of defendant DOES 1 through 50, or any of them, and therefore sue such
defendants by such fictitious names. Plaintiff will seek leave to amend this complaint to show the true
names and capacities of such fictitiously named defendants when they have been ascertained. Plaintiff is
informed and believe and thereon allege that each of the defendants designated herein as a DOE is legally
responsible in some manner for the acts, omissions, and events alleged herein and in each of the causes of
action, and has proximately caused damages and injury to plaintiff as alleged.
ALTER EGO ALLEGATIONS
6. At all times mentioned in this complaint, each individually named defendant was and is
the alter ego of each business entity defendant and that at all times herein mentioned there existed such a
unity of interest in ownership between the defendants such that any separateness has ceased to exist
between them because (a) the defendants commingled and used the assets of the other defendant(s) for
defendant’s own benefit and has caused the assets of the defendant(s) to be transferred between and among
the other defendant(s) without adequate consideration; and (b) defendant(s) has exercised complete
dominance and control over the other defendant(s), and its properties, such that the defendant(s) and its
assets are mere shells and instrumentalities for the conduct of the personal business and activities of the
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Complaint for Personal Injuries, Damages and Injunctive Reliefjonathan@bornsteinlaw.com
0-901-0010 / Fax: 510-560-3590
J.H. Bornstein — Attorney At Law
2701 Telegraph Ave., Ste. 200, Oakland, CA 94612
Te!
other defendant(s). Adherence to the fiction of a separate existence would sanction fraud upon plaintiff
and permit an abuse of the legal benefits of true business entities. Plaintiff alleges that each defendant is
therefore liable for any judgment rendered against any other defendant, and each individual defendant is
liable for any judgment rendered against any business entity defendant.
JOINT AND SEVERAL LIABILITY OF DEFENDANTS
7. At all times mentioned herein each of the defendants named in the complaint, inclusive,
were agents, servants, partners, joint venturers or employees of each of the remaining defendants and
acting within the purpose, scope and course of that agency, service, partnership or employment, with the
express or implied knowledge, permission and consent of the remaining defendants, and each of them,
ratified and approved of the acts and omissions of the other defendants.
8. At all times mentioned herein, each defendant conspired with each other to commit the
wrongful acts and omissions complained of herein. Although not all of the defendants committed all of
the acts of the conspiracy or were members of the conspiracy at all times during its existence, each
defendant knowingly performed one or more acts in direct furtherance of the objectives of the conspiracy,
and thus each defendant is liable for the acts of all of the other conspirators.
9. At all times mentioned herein there existed such a unity and identity of interest between
each individual defendant and business entity defendant that an adherence to the fiction of the separate
existence of each would work a fraud upon plaintiff.
JURISDICTION AND VENUE
10. The Superior Court of the State of California for the County of San Francisco has proper
personal jurisdiction over the parties to this action under Civil Procedure Code section 410.10 because
each individual defendant is domiciled in San Francisco County, employed in said county, conducted
business in said county, and each business entity defendant maintains its principal executive offices in
said county.
3.
Complaint for Personal Injuries, Damages and Injunctive ReliefJ.H. Bornstein — Attorney At Law
2701 Telegraph Ave., Ste. 200, Oakland, CA 94612
Tele: 510-901-0010 / Fax: 610-560-3590
Email: jonathan@bornsteinlaw.com
Jl. The Superior Court of the State of California for the County of San Francisco has proper
subject matter jurisdiction over this action under Civil Procedure Code section 88 because the amount of
damages claimed exceeds this court’s jurisdictional minimum amount.
12. Venue is proper in this court under Civil Procedure Code sections 395 and 395.5 because
(a) the individual defendants are or were either domiciled or employed in the County of San Francisco
and State of California, and/or (b) the corporate and business entity defendants either maintain their
principal places of business, or conduct business, in the City and County of San Francisco.
FIRST CAUSE OF ACTION
Negligence - including but not limited to Negligence Per Se
(Against all Defendants)
13. Plaintiff re-alleges and incorporates by reference the allegations set forth in preceding
paragraphs of the Complaint. Where any of the allegations in the referenced paragraphs of this cause of
action conflict, the plaintiff re-alleges the conflicting allegations in the alternative.
4. Defendant Airbnb held and continues to hold itself out to the public as “a trusted
community marketplace for people to list, discovery and book unique accommodations around the world.”
5. Defendant Airbnb created a business enterprise whereby they lease, offer to lease, place
for rent, solicit listings of places for rent, solicit prospective tenants, licensees and collect rent from real
property in exchange for financial remuneration.
6. Defendant’s business enterprise depends upon bringing two or more parties together for
the purpose of leasing or licensing occupancy of a particular piece of real property.
7. Essentially, defendant provides a service to the public for financial remuneration whereby
they connect lessors of real property or “hosts”, i.e., individuals or entities who own or are in possession
of single-family homes, apartments, etc., with third parties intending to rent these properties and/or occupy
said real properties.
8. In doing so, defendant Airbnb:
(a) Solicits listings of places for rent;
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Complaint for Personal Injuries, Damages and Injunctive Reliefph Ave., Ste, 200, Oakland, CA 94612
|; jonathan@bornsteinlaw.com
J.H, Bornstein — Attorney At Law
10-901-0010 / Fax: 510-560-3590
Tele:
2701 Teles
(b) Creates a platform whereby third parties may view a property by showcasing the
property online, thereby soliciting for prospective tenants
(c) Creates a sense of trust and safety as between the parties;
(d) Serves as the broker as between the host and third party for the rental of these
properties;
(e) Collects the applicable fees for the host; and
(f) Addresses any problems that arise with respect to the rental of the properties.
19. In this case, plaintiff booked an entire apartment located at 230 West Alabama Street, Unit
804, City of Houston, County of Harris, and State of Texas, (hereinafter “subject premises”) through
Airbnb’s secured website utilizing a personal Airbnb account.
20. At all relevant times, Defendants Doe 1-15, (hereinafter “Lessors”) were the lawful
occupiers of the subject premises that they rented to third parties through Airbnb.
21. Plaintiff was such a third-party, who booked the subject premises through Airbnb for a
defined rental period through Airbnb’s secured website utilizing plaintiffs personal Airbnb account while
in the State of California.
22. The length of the rental period spanned from October 9, 2019, to October 11, 2019.
23. No written agreement existed with the Lessors. Instead, the rental of the property was
conducted through Airbnb. The booking and payment of the property was made solely by plaintiff through
the Airbnb platform, utilizing plaintiff's personal Airbnb account.
24. Accordingly, plaintiff become lawful occupants of the subject premises for the defined
rental period.
25. Defendant Airbnb, as operator, manager, agent, and/or entity in full or joint control of the
leasing process for the subject premises, owed a duty to plaintiff to exercise reasonable care under the
circumstances to avoid causing personal injury and to comply with the California Code as it relates to
rental properties, including the subject premises and subject occupancy.
26. Atno time did defendant Airbnb or the lessor inform plaintiff that a video camera or digital
audio and imaging recording device was located in the subject premises or that it was being controlled
from a remote location in order to observe and listen to plaintiff during plaintiff's stay within the subject
premises.
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Complaint for Personal Injuries, Damages and Injunctive ReliefEmail: jonathan@bornsteinlaw.com
J.H. Bornstein — Attorney At Law
2701 Telegraph Ave., Ste. 200, Oakland, CA 94612
Tele: 510-901-0010 / Fax: 510-560-3590
27. Consequently, plaintiff arrived at the subject premises on October 9, 2019, not knowing
that their privacy would be violated on a daily basis during their stay. After plaintiff arrived at the subject
premises, the lessor admitted to plaintiff that lessor was not permitted to “Airbnb” the subject premises.
28. Notably, plaintiff believed they were protected and free from prying eyes and carried on
with their lives as such and engaged in highly personal matters and intimate affairs.
29. On the second day, Plaintiff noticed a light coming from the smoke detector on the ceiling
located near the bed and went to investigate the source of the light.
30. Plaintiff discovered a video/digital camera disguised as a smoke detector.
31. Plaintiff complained to the lessor through the review of lessor’s Airbnb profile. The lessor
acknowledged that there was a hidden video camera/digital audio and visual recording device in the
subject premises. Plaintiff then covered the lens of the video camera. Plaintiff complained to defendant
Airbnb about the lessor and the subject premises.
32. To date, the lessor and the listing continues to be available on defendant Airbnb’s platform
to the general public for booking. Defendant Airbnb ratified the lessor’s conduct.
33. Plaintiffs are deeply humiliated and angry about the fact that the camera/recording device
was and/or could have been used to spy upon them while they were in the subject premises. Moreover,
they have been and continue to be concerned that images of them exist in electronic form and could make
their way onto the Internet or some other medium.
34. Plaintiffs remain concerned about their level of privacy when staying in a property not their
own, and this concern has negatively impacted their level of enjoyment in travel-related activities.
35. At all relevant times, defendant Airbnb held and continues to represent itself out to the
public as “a trusted community marketplace for people to list, discover, and book unique accommodations
around the world.”
36. On the Airbnb website concerning trust, safety, and community standards, defendant
indicates that its users “should trust that you will feel secure.” It provides that the user “should not spy on
other people; cameras are not allowed in your listing unless they are previously disclosed and visible, and
they are never permitted in private spaces (such as bathrooms or sleeping areas).”
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Complaint for Personal Injuries, Damages and Injunctive ReliefJ.H. Bornstein — Attorney At Law
2701 Telegraph Ave., Ste. 200,
Email: jonathan@bornsteinlaw.com
Tele: 510-901-0010 / Fax: 510-660-3590
37. Paragraph 14 of Airbnb’s Terms of Service, last updated November 1, 2019, provides that
a user will not “violate or infringe anyone else’s rights or otherwise cause harm to anyone.” In addition,
defendant Airbnb has publicly stated: “We require hosts to clearly disclose any security cameras in writing
on their listings and we have strict standards governing surveillance devices in listings.” [Emphasis
added.] Fussell, Sidney, “Airbnb Has a Hidden-Camera Problem.” The Atlantic, March 26, 2019,
https://www.theatlantic.com/technology/archive/20 1 9/03/what-happens-when-you-find-cameras-your-
airbnb/585007/.
38. Also, Airbnb spokesman Charlie Urbancic stated to NBC News: “We have strict policies
regarding the proper disclosure of security cameras and take reports of any violations extremely seriously.
The safety and privacy of our community is our priority.” Popken, Ben, “At Airbnb? You might be on
camera, whether you like it or not.” NBC News, March 7, 2019, 1:20 pm PST,
https://www.nbcnews.com/tech/security/airbnb-y ou-might-be-camera-whether-you-it-or-not-n974776.
39. Further, Airbnb prohibits its users from requesting, making, or accepting “a booking
independent of the Airbnb Platform, to circumvent any Service Fees or for any other reason ...” Rentals
are conducted strictly through Airbnb.
40. These affirmative acts by defendant of bringing lessors and lessees of real property together
through its Internet portal and prohibiting them from brokering rentals independent of Airbnb places upon
defendant, as operator, manager, agent, and/or entity in full or joint control of the leasing process of the
subject premises, an obligation of ordinary care under the circumstances to avoid causing personal injury
and to comply with applicable California or Texas laws as it relates to rental properties.
41. Yet, at all relevant times, in establishing an individual as a lessor within the Airbnb system,
little to no effort is undertaken by defendant by way of a vetting process with respect to these hosts to
ensure the safety and welfare of the third parties renting properties through Airbnb.
42. Asa general proposition and at all relevant times in the instant matter, defendant:
(a) Fails/failed to engage in any meaningful background checks of the lessors;
(b) Fails/failed to adequately and fully verify personal details of the lessors;
(c) Fails/failed to verify information and details about the property being rented out by
the lessors; and
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Complaint for Personal Injuries, Damages and Injunctive Reliefid, CA 94612
J.H. Bornstein — Attorney At Law
2701 Telegraph Ave., Ste. 200, 02
(d) Fails/failed to implement policies and procedures to protect the common law,
constitutionally and statutorily protected rights of privacy, and quiet enjoyment of
lessees renting the properties through Airbnb.
43. By failing to engage in little, if any, investigation of lessors before allowing lessors to post
their property on the Internet portal, defendant created and continues to create a foreseeable risk of harm
to parties such as plaintiff who relies upon defendant’s representation that it has created “a trusted
community marketplace for people to list, discover and book unique accommodations around the world.”
44. Defendant, upon information and belief, conducted no background investigation of the
lessor, nor did defendant engage in any reasonable evaluation of the lessor prior to posting the subject
premises upon the Internet portal, nor did defendant have reasonable policies and procedures in place in
order to protect lessees who rely on Airbnb to rent property.
45. Defendant breached its obligation of ordinary care for these delineated reasons.
46. Moreover, defendant violated an ordinance, statute, regulation, law, and/or rule of a public
entity which was adopted for the protection of a class of persons of which plaintiff is a member, including
but not limited to relevant sections of the State of California Penal Code and the State of Texas Penal
Code, including but not limited to California Penal Code Secs. 630, et seq., 632, 637.2, 646.7, 646.9, 647,
Texas Penal Code Secs. 16.01, 16.02, 21.15, 21.16, 21.17, 21.19, 43.22, 43.23, among others. In addition,
California Civil Code Secs. 1927, 1954, and 1708.8, inter alia, and Article I, Sec. 1 of the California
Constitution, among others. Because of said violations, plaintiff suffered a harm which said laws were
designed to prevent.
47, Real Estate brokers must be licensed in the State of California Pursuant to §10130 of the
California Business and Professions Code and § 535.4 of the Texas Real Estate Commission Rules.
48. Defendant leased, offered to lease, placed for rent, solicited listings of places for rent,
solicited prospective tenants and/or collected rent from real property, thereby falling within the definition
of a real estate broker within § 10131 of the California Business and Professions Code and § 535.4 of the
Texas Real Estate Commission Rules.
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Complaint for Personal Injuries, Damages and Injunctive ReliefTele: 510-901-0010 / Fax: 510-560-3590
J.H. Bornstein ~ Attorney At Law
2701 Telegraph Ave., Ste. 200, Oakland, CA 94612
Email: jonathan@bornsteinlaw.com
49. Despite engaging in the activities delineated within §10131 of the California Business
Records and Professions Code and § 535.4 of the Texas Real Estate Commission Rules, defendant does
not hold a broker’s license in compliance with such sections.
50. Defendant’s acts and omissions and breach of statutes, codes, rules and/or standard of care,
among other things, were a substantial factor in causing plaintiff harm. As a direct and proximate result
of the defendants’ abuse, plaintiff suffered discomfort, annoyance, inconvenience, anxiety, economic loss,
mental anguish, in an amount to be determined at trial
51. In doing the acts and omissions herein alleged, defendant acted with oppression, fraud, and
malice, and plaintiff is entitled to exemplary damages.
52. The conduct of defendant alleged herein was illegal, criminal, oppressive, fraudulent,
malicious, as defined in Civil Code Sec. 3294, and plaintiff should recover, in addition to actual damages,
damages to make an example of and punish defendant. Furthermore, defendant’s acts and omissions were
done with conscious disregard of plaintiff's rights. At all times mentioned herein, defendant acted willfully
and with the wrongful intention of injuring plaintiff and from an improper or evil motive amounting to
malice. Plaintiff is therefore entitled to punitive damages.
SECOND CAUSE OF ACTION
Intrusion of Privacy
(Against all Defendants)
53. Plaintiff re-alleges and incorporates by reference the allegations set forth in preceding
paragraphs of the Complaint. Where any of the allegations in the referenced paragraphs of this cause of
action conflict, the plaintiff re-alleges the conflicting allegations in the alternative.
54. Atall times relevant herein, plaintiff had a legally protected right of privacy while staying
within the subject premises.
55. Through defendant’s acts and omissions and breach of statutes, codes, rules and/or standard
of care, among other things, including but not limited to Calif. CC §§ 1708.8, 1927, 1954, Cal. Penal Code
Sec. 631, 632, 632.5, 632.6, 632.7, 637.2, 637.3, 632.7, inter alia., Texas Penal Code Secs. 16.02, 33.01,
et. seq., 21.15, 21.16, 30.05, Tex. Civ. Prac. & Rem. Code Sec. 123.001, 123.002, et. seq. 143.001, as
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Complaint for Personal Injuries, Damages and Injunctive ReliefJ.H. Bornstein — Attorney At Law
2701 Telegraph Ave., Ste. 200, Oakland, CA 94612
Tele: 510-901-0010 / Fax: 610-560-3590
Email: jonathan@bornsteinlaw.com
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discussed herein, defendant and each of them enabled and/or ratified the violation of plaintiffs right to
privacy.
56. The lessor, and by extension defendant Airbnb, engaged in conduct highly offensive and
objectionable to a reasonable person. There is no competing or compelling interest in viewing and/or
recording plaintiff in the property during the rental period.
57. Plaintiff alleges on information and belief that as a proximate and foreseeable result of the
aforementioned conduct of defendant, plaintiff suffered extreme mental anguish, together with emotional
and physical distress, injuring plaintiff in plaintiffs mind and body, all to plaintiff's damage in an amount
to be ascertained at trial.
58. The conduct of defendant alleged herein was illegal, criminal, oppressive, fraudulent,
malicious, as defined in Civil Code Sec. 3294, and plaintiff should recover, in addition to actual damages,
damages to make an example of and punish defendant. Furthermore, defendant’s acts and omissions were
done with conscious disregard of plaintiff's rights. At all times mentioned herein, defendant acted willfully
and with the wrongful intention of injuring plaintiff and from an improper or evil motive amounting to
malice. Plaintiff is therefore entitled to punitive damages.
THIRD CAUSE OF ACTION
Trespass
(Against all Defendants)
59. Plaintiff re-alleges and incorporates by reference the allegations set forth in preceding
paragraphs of the Complaint. Where any of the allegations in the referenced paragraphs of this cause of
action conflict, the plaintiff re-alleges the conflicting allegations in the alternative.
60. The lessor engaged defendant to rent the subject premises out to third parties.
61. In doing so, the defendant acted as operator, manager, and/or entity in full or joint control
of the leasing process of the property and/or, at minimum, acted as the agent of the lessor who have the
obligation of refraining from trespassing upon the property.
62. Each use of the electronic device constituted an unauthorized entry upon the subject
premises.
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Complaint for Personal Injuries, Damages and Injunctive ReliefJ.H. Bornstein — Attorney At Law
2701 Telegraph Ave., Ste. 200, Oakland, CA 94612
‘Tele: 510-901-0010 / Fax: 510-560-3590
Email: jonathan@bornsteinlaw.com
63. By failing to ensure that the subject premises did not contain such electronic devices
despite asserting that plaintiff “should trust that you will feel secure”, defendant enabled the lessor to
trespass upon the property and cause damage to individuals utilizing defendant’s platform and services,
including any invitees on the property.
64. Defendant further allowed the trespass to occur upon the subject premises by failing to
disclose the presence in the property of electronic devices capable of observing and/or capturing visual
images and/or audio recordings, as well as physical impressions of plaintiff engaging in private, personal,
or familial activity.
65. Plaintiff alleges on information and belief that as a proximate and foreseeable result of the
aforementioned conduct of defendant, plaintiff suffered extreme mental anguish, together with emotional
and physical distress, injuring plaintiff in plaintiffs mind and body, all to plaintiff's damage in an amount
to be ascertained at trial.
66. The conduct of defendant alleged herein was illegal, criminal, oppressive, fraudulent,
malicious, as defined in Civil Code Sec. 3294, and plaintiff should recover, in addition to actual damages,
damages to make an example of and punish defendant. Furthermore, defendant’s acts and omissions were
done with conscious disregard of plaintiff’s rights. At all times mentioned herein, defendant acted willfully
and with the wrongful intention of injuring plaintiff and from an improper or evil motive amounting to
malice. Plaintiff is therefore entitled to punitive damages.
FOURTH CAUSE OF ACTION
Fraud
(Against all Defendants)
67. Plaintiff re-alleges and incorporates by reference the allegations set forth in preceding
paragraphs of the Complaint. Where any of the allegations in the referenced paragraphs of this cause of
action conflict, the plaintiff re-alleges the conflicting allegations in the alternative.
68. Defendant represented that plaintiff would be free from spying and intrusions into their
personal and private affairs.
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Complaint for Personal Injuries, Damages and Injunctive ReliefJ.H. Bornstein — Attorney At Law ,
2701 Telegraph Ave., Ste. 200, Oakland, CA 94612
901-0010 / Fax: 510-560-3590
jonathan@bornsteinlaw.com
Tele:
Em:
69. Those representations were false and made by defendant with knowledge of their falsity.
Defendant’s representations were made fraudulently and maliciously with the intent to convince plaintiff
that they would be free from spying and intrusions into their personal and private affairs if plaintiff decided
to book the property through the Airbnb platform.
70. Plaintiff justifiably relied on defendant’s representations on the website and paid defendant
for the use of the apartment.
71. As a direct and proximate result of defendant’s fraudulent conduct, plaintiff suffered
special damages to be proven at the time of trial. Plaintiff suffered general damages, including, but not
limited to, humiliation, shock, embarrassment, intimidation, physical distress and injury, fear, stress, and
other damages to be proven at the time of trial.
72. The conduct of defendant alleged herein was illegal, criminal, oppressive, fraudulent,
malicious, as defined in Civil Code Sec. 3294, and plaintiff should recover, in addition to actual damages,
damages to make an example of and punish defendant. Furthermore, defendant’s acts and omissions were
done with conscious disregard of plaintiff's rights. At all times mentioned herein, defendant acted willfully
and with the wrongful intention of injuring plaintiff and from an improper or evil motive amounting to
malice. Plaintiff is therefore entitled to punitive damages.
FIFTH CAUSE OF ACTION
Negligent Misrepresentation
(Against all Defendants)
73. Plaintiff re-alleges and incorporates by reference the allegations set forth in preceding
paragraphs of the Complaint. Where any of the allegations in the referenced paragraphs of this cause of
action conflict, the plaintiff re-alleges the conflicting allegations in the alternative.
74. Defendant negligently represented that plaintiff would be free from spying and intrusions
into their personal and private affairs.
75. When defendant made these negligent misrepresentations, defendant had no reasonable
grounds to believe them to be true. Alternatively, defendant made these representations with the intention
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Complaint for Personal Injuries, Damages and Injunctive ReliefJ.H. Bornstein — Attorney At Law
2701 Tele
ph Ave., Ste. 200, Oakland, CA 94612
of inducing plaintiff to act in reliance on said representations in the manner herein alleged, or with the
expectation that plaintiff would so act or refrain from acting.
76. Plaintiff justifiably relied on defendant’s representations on the website and booked the
property through the Airbnb platform.
771. As a direct and proximate result of defendant’s fraudulent conduct, plaintiff suffered
special damages to be proven at the time of trial. Plaintiff suffered general damages, including, but not
limited to, humiliation, shock, embarrassment, intimidation, physical distress and injury, fear, stress, and
other damages to be proven at the time of trial.
78. Plaintiff alleges on information and belief that as a proximate and foreseeable result of the
aforementioned conduct of defendant, plaintiff suffered extreme mental anguish, together with emotional
and physical distress, injuring plaintiff in plaintiffs mind and body, all to plaintiffs damage in an amount
to be ascertained at trial.
79. | The conduct of defendant alleged herein was illegal, criminal, oppressive, fraudulent,
malicious, as defined in Civil Code Sec. 3294, and plaintiff should recover, in addition to actual damages,
damages to make an example of and punish defendant. Furthermore, defendant’s acts and omissions were
done with conscious disregard of plaintiff's rights. At all times mentioned herein, defendant acted willfully
and with the wrongful intention of injuring plaintiff and from an improper or evil motive amounting to
malice. Plaintiff is therefore entitled to punitive damages.
SIXTH CAUSE OF ACTION
Intentional Infliction of Emotional Distress
(Against all Defendants)
80. Plaintiff re-alleges and incorporates by reference the allegations set forth in preceding
paragraphs of the Complaint. Where any of the allegations in the referenced paragraphs of this cause of
action conflict, the plaintiff re-alleges the conflicting allegations in the alternative.
81. Plaintiff alleges on information and belief that the defendants’ conduct, as specified above
and throughout, was intentional, malicious and done for the purpose of causing plaintiff to suffer mental
anguish, together with emotional and physical distress.
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Complaint for Personal Injuries, Damages and Injunctive ReliefTele: 510-901-0010 / Fax: 510-560-3590
J.H. Bornstein — Attorney At Law
2701 Telegraph Ave., Ste. 200, Oakland, CA 94612
Email: jonathan@bornsteinlaw.com
82. Said conduct abused defendants’ position and gave defendants power to damage plaintiff's
interests. Plaintiff further alleges on information and belief that the defendants knew or should have known
that plaintiff was particularly susceptible to injury through mental distress and acted unreasonably with
the recognition that the acts and/or omissions were likely to result in such illness.
83. Plaintiff alleges on information and belief that as a proximate and foreseeable result of
defendant’s aforementioned conduct, plaintiff suffered extreme mental anguish, together with emotional
and physical distress, injuring plaintiff in plaintiffs mind and body, all to plaintiffs damage in an amount
to be ascertained at trial.
84. | The conduct of defendant alleged herein was illegal, criminal, oppressive, fraudulent,
malicious, as defined in Civil Code Sec. 3294, and plaintiff should recover, in addition to actual damages,
damages to make an example of and punish defendant. Furthermore, defendant’s acts and omissions were
done with conscious disregard of plaintiffs rights. At all times mentioned herein, defendant acted willfully
and with the wrongful intention of injuring plaintiff and from an improper or evil motive amounting to
malice. Plaintiff is therefore entitled to punitive damages.
SEVENTH CAUSE OF ACTION
Negligent Infliction of Emotional Distress
(Against all Defendants)
85. Plaintiff re-alleges and incorporates by reference the allegations set forth in preceding
paragraphs of the Complaint. Where any of the allegations in the referenced paragraphs of this cause of
action conflict, the plaintiff re-alleges the conflicting allegations in the alternative.
86. Plaintiff alleges on information and belief that defendants’ conduct together, as specified
above and throughout, was negligent and had the foreseeable result of causing plaintiff to suffer mental
anguish, together with emotional and physical distress.
87. Plaintiff alleges on information and belief that as a proximate and foreseeable result of the
aforementioned conduct of defendant, plaintiff suffered extreme mental anguish, together with emotional
and physical distress, injuring plaintiff in plaintiff’s mind and body, all to plaintiff's damage in an amount
to be ascertained at trial.
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Complaint for Personal Injuries, Damages and Injunctive ReliefB
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Tele: 510-901-0010 / Fax: 510-560-3590
Email: jonathan@bornsteinlaw.com
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J.H. Bornstein — Attorney At Law
2701 Telegraph Ave., Ste. 200, Oakland, CA 94612
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88. The conduct of defendant alleged herein was illegal, criminal, oppressive, fraudulent,
malicious, as defined in Civil Code Sec. 3294, and plaintiff should recover, in addition to actual damages,
damages to make an example of and punish defendant. Furthermore, defendant’s acts and omissions were
done with conscious disregard of plaintiff's rights. At all times mentioned herein, defendant acted willfully
and with the wrongful intention of injuring plaintiff and from an improper or evil motive amounting to
malice. Plaintiff is therefore entitled to punitive damages.
EIGHTH CAUSE OF ACTION
Violation of Business Professions Code Sec. 17200, et seq.
(Against All Defendants)
89. Plaintiff re-alleges and incorporates by reference the allegations set forth in preceding
paragraphs of the Complaint. Where any of the allegations in the referenced paragraphs of this cause of
action conflict, the plaintiff re-alleges the conflicting allegations in the alternative.
90. Plaintiff brings this cause of action against defendant for Violation of California Business
and Professions Code (“B&P Code”) Sec. 17200, et seq.
91. The California Business and Professions Code (“B&P Code”) Sec. 17200, et seq. (the
“Unfair Business Practices Act”) prohibits unfair competition in the form of any unlawful, unfair or
fraudulent business act or practice.
92. B&P Code § 17202 provides that “[N]otwithstanding Section 2289 of the Civil Code,
specific or preventative relief may be granted to enforce a penalty, forfeiture, or penal law in case of unfair
competition.”
93. B&P Code § 1703 provides that the Court may restore to any person in interest any money
or property which may have been acquired by means of such unfair competition.
94. B&P Code § 17204 allows “any person who has suffered injury in fact and has lost money
or property as a result of such unfair competition’ to prosecute a civil action for violation of this code.”
95. B&P Code § 17204 allows “any person acting for the interest of itself, its members or the
general public” to prosecute a civil action for violation of the Unfair Business Practices Act.
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BY FAX Tele? 610-901-0010 / Fax: 510-560-3590 Email: jonathan@bornsteiniaw.com J.H. Bornstein — Attorney At Law 2701 Telegraph Ave., Ste. 200, Oakland, CA 94612 OR. SINAL JONATHAN HERSCHEL BORNSTEIN (SBN 163392) J.H. BORNSTEIN - ATTORNEY AT LAW 2701 Telegraph Avenue, Suite 200 Oakland, CA 94612-1715 Son Franttog te Cb N Telephone: (510) 901-0010 unty Superior Court Facsimile: (510) 560-3590 JAN 29 2020 Email: jonathan@bornsteinlaw.com CLERK OF FHE,C Attorneys for Plaintiffs BY: ‘OURT Georgia Walker and Ray Murillo Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO — UNLIMITED CIVIL JURISDICTION — CIVIC CENTER COURTHOUSE GEORGIA WALKER AND RAY MURILLO, __)_ Case Number: ) - Plaintiffs, ) COMPLAINT FOR PERSONAL INJURIES, ) DAMAGES AND INJUNCTIVE RELIEF: v. Negligence (including Negligence Per Se); AIRBNB, INC., a Delaware Corporation, AND Intrusion of Privacy; DOES 1 - 50, INCLUSIVE, rau. Negligent Misrepresentation; Intentional Infliction of Emotional Distress; Negligent Infliction of Emotional Distress; and Unfair Competition (B&P § 17200, et sq.) Defendants. ere ree SSE EH WY ONAWALN SE Plaintiffs Georgia Walker and Ray Murillo (hereinafter collectively “plaintiff’) by this complaint against defendant Airbnb, Inc., a Delaware corporation, and Does 1-50, inclusive (hereinafter collectively “defendant”) hereby allege causes of action against defendant for having a hidden camera recording plaintiffs in violation of their right to privacy, and breach of defendants’ promises and duties for which defendants were provided renumeration, among other things, as follows: -1- Complaint for Personal Injuries, Damages and Injunctive ReliefJ.H. Bornstein — Attorney At Law 2701 Telegraph Ave., Ste. 200, Oakland, CA 94612 Tele: 510-901-0010 / Fax: 510-560-3590 Email: jonathan@bornsteinlaw.com PARTIES 1. At all relevant times stated herein, plaintiffs Georgia Walker and Ray Murillo were over the age of eighteen (18) years, and reside in the City of San Jose, Count of Santa Clara and State of California. 2. At all relevant times stated herein, each and every defendant was a resident the City and County of San Francisco and State of California, and/or conducted business therein. 3. At all relevant times stated herein, Defendant Airbnb, Inc. (hereinafter “Airbnb”) is a Delaware corporation with a principal place of business in the City and County of San Francisco, and State of California. 4, Plaintiff requests a jury trial. 5. Plaintiff is presently unaware of the true names and capacities, whether individual, associate, corporate, or otherwise of defendant DOES 1 through 50, or any of them, and therefore sue such defendants by such fictitious names. Plaintiff will seek leave to amend this complaint to show the true names and capacities of such fictitiously named defendants when they have been ascertained. Plaintiff is informed and believe and thereon allege that each of the defendants designated herein as a DOE is legally responsible in some manner for the acts, omissions, and events alleged herein and in each of the causes of action, and has proximately caused damages and injury to plaintiff as alleged. ALTER EGO ALLEGATIONS 6. At all times mentioned in this complaint, each individually named defendant was and is the alter ego of each business entity defendant and that at all times herein mentioned there existed such a unity of interest in ownership between the defendants such that any separateness has ceased to exist between them because (a) the defendants commingled and used the assets of the other defendant(s) for defendant’s own benefit and has caused the assets of the defendant(s) to be transferred between and among the other defendant(s) without adequate consideration; and (b) defendant(s) has exercised complete dominance and control over the other defendant(s), and its properties, such that the defendant(s) and its assets are mere shells and instrumentalities for the conduct of the personal business and activities of the -2- Complaint for Personal Injuries, Damages and Injunctive Reliefjonathan@bornsteinlaw.com 0-901-0010 / Fax: 510-560-3590 J.H. Bornstein — Attorney At Law 2701 Telegraph Ave., Ste. 200, Oakland, CA 94612 Te! other defendant(s). Adherence to the fiction of a separate existence would sanction fraud upon plaintiff and permit an abuse of the legal benefits of true business entities. Plaintiff alleges that each defendant is therefore liable for any judgment rendered against any other defendant, and each individual defendant is liable for any judgment rendered against any business entity defendant. JOINT AND SEVERAL LIABILITY OF DEFENDANTS 7. At all times mentioned herein each of the defendants named in the complaint, inclusive, were agents, servants, partners, joint venturers or employees of each of the remaining defendants and acting within the purpose, scope and course of that agency, service, partnership or employment, with the express or implied knowledge, permission and consent of the remaining defendants, and each of them, ratified and approved of the acts and omissions of the other defendants. 8. At all times mentioned herein, each defendant conspired with each other to commit the wrongful acts and omissions complained of herein. Although not all of the defendants committed all of the acts of the conspiracy or were members of the conspiracy at all times during its existence, each defendant knowingly performed one or more acts in direct furtherance of the objectives of the conspiracy, and thus each defendant is liable for the acts of all of the other conspirators. 9. At all times mentioned herein there existed such a unity and identity of interest between each individual defendant and business entity defendant that an adherence to the fiction of the separate existence of each would work a fraud upon plaintiff. JURISDICTION AND VENUE 10. The Superior Court of the State of California for the County of San Francisco has proper personal jurisdiction over the parties to this action under Civil Procedure Code section 410.10 because each individual defendant is domiciled in San Francisco County, employed in said county, conducted business in said county, and each business entity defendant maintains its principal executive offices in said county. 3. Complaint for Personal Injuries, Damages and Injunctive ReliefJ.H. Bornstein — Attorney At Law 2701 Telegraph Ave., Ste. 200, Oakland, CA 94612 Tele: 510-901-0010 / Fax: 610-560-3590 Email: jonathan@bornsteinlaw.com Jl. The Superior Court of the State of California for the County of San Francisco has proper subject matter jurisdiction over this action under Civil Procedure Code section 88 because the amount of damages claimed exceeds this court’s jurisdictional minimum amount. 12. Venue is proper in this court under Civil Procedure Code sections 395 and 395.5 because (a) the individual defendants are or were either domiciled or employed in the County of San Francisco and State of California, and/or (b) the corporate and business entity defendants either maintain their principal places of business, or conduct business, in the City and County of San Francisco. FIRST CAUSE OF ACTION Negligence - including but not limited to Negligence Per Se (Against all Defendants) 13. Plaintiff re-alleges and incorporates by reference the allegations set forth in preceding paragraphs of the Complaint. Where any of the allegations in the referenced paragraphs of this cause of action conflict, the plaintiff re-alleges the conflicting allegations in the alternative. 4. Defendant Airbnb held and continues to hold itself out to the public as “a trusted community marketplace for people to list, discovery and book unique accommodations around the world.” 5. Defendant Airbnb created a business enterprise whereby they lease, offer to lease, place for rent, solicit listings of places for rent, solicit prospective tenants, licensees and collect rent from real property in exchange for financial remuneration. 6. Defendant’s business enterprise depends upon bringing two or more parties together for the purpose of leasing or licensing occupancy of a particular piece of real property. 7. Essentially, defendant provides a service to the public for financial remuneration whereby they connect lessors of real property or “hosts”, i.e., individuals or entities who own or are in possession of single-family homes, apartments, etc., with third parties intending to rent these properties and/or occupy said real properties. 8. In doing so, defendant Airbnb: (a) Solicits listings of places for rent; 4. Complaint for Personal Injuries, Damages and Injunctive Reliefph Ave., Ste, 200, Oakland, CA 94612 |; jonathan@bornsteinlaw.com J.H, Bornstein — Attorney At Law 10-901-0010 / Fax: 510-560-3590 Tele: 2701 Teles (b) Creates a platform whereby third parties may view a property by showcasing the property online, thereby soliciting for prospective tenants (c) Creates a sense of trust and safety as between the parties; (d) Serves as the broker as between the host and third party for the rental of these properties; (e) Collects the applicable fees for the host; and (f) Addresses any problems that arise with respect to the rental of the properties. 19. In this case, plaintiff booked an entire apartment located at 230 West Alabama Street, Unit 804, City of Houston, County of Harris, and State of Texas, (hereinafter “subject premises”) through Airbnb’s secured website utilizing a personal Airbnb account. 20. At all relevant times, Defendants Doe 1-15, (hereinafter “Lessors”) were the lawful occupiers of the subject premises that they rented to third parties through Airbnb. 21. Plaintiff was such a third-party, who booked the subject premises through Airbnb for a defined rental period through Airbnb’s secured website utilizing plaintiffs personal Airbnb account while in the State of California. 22. The length of the rental period spanned from October 9, 2019, to October 11, 2019. 23. No written agreement existed with the Lessors. Instead, the rental of the property was conducted through Airbnb. The booking and payment of the property was made solely by plaintiff through the Airbnb platform, utilizing plaintiff's personal Airbnb account. 24. Accordingly, plaintiff become lawful occupants of the subject premises for the defined rental period. 25. Defendant Airbnb, as operator, manager, agent, and/or entity in full or joint control of the leasing process for the subject premises, owed a duty to plaintiff to exercise reasonable care under the circumstances to avoid causing personal injury and to comply with the California Code as it relates to rental properties, including the subject premises and subject occupancy. 26. Atno time did defendant Airbnb or the lessor inform plaintiff that a video camera or digital audio and imaging recording device was located in the subject premises or that it was being controlled from a remote location in order to observe and listen to plaintiff during plaintiff's stay within the subject premises. -5- Complaint for Personal Injuries, Damages and Injunctive ReliefEmail: jonathan@bornsteinlaw.com J.H. Bornstein — Attorney At Law 2701 Telegraph Ave., Ste. 200, Oakland, CA 94612 Tele: 510-901-0010 / Fax: 510-560-3590 27. Consequently, plaintiff arrived at the subject premises on October 9, 2019, not knowing that their privacy would be violated on a daily basis during their stay. After plaintiff arrived at the subject premises, the lessor admitted to plaintiff that lessor was not permitted to “Airbnb” the subject premises. 28. Notably, plaintiff believed they were protected and free from prying eyes and carried on with their lives as such and engaged in highly personal matters and intimate affairs. 29. On the second day, Plaintiff noticed a light coming from the smoke detector on the ceiling located near the bed and went to investigate the source of the light. 30. Plaintiff discovered a video/digital camera disguised as a smoke detector. 31. Plaintiff complained to the lessor through the review of lessor’s Airbnb profile. The lessor acknowledged that there was a hidden video camera/digital audio and visual recording device in the subject premises. Plaintiff then covered the lens of the video camera. Plaintiff complained to defendant Airbnb about the lessor and the subject premises. 32. To date, the lessor and the listing continues to be available on defendant Airbnb’s platform to the general public for booking. Defendant Airbnb ratified the lessor’s conduct. 33. Plaintiffs are deeply humiliated and angry about the fact that the camera/recording device was and/or could have been used to spy upon them while they were in the subject premises. Moreover, they have been and continue to be concerned that images of them exist in electronic form and could make their way onto the Internet or some other medium. 34. Plaintiffs remain concerned about their level of privacy when staying in a property not their own, and this concern has negatively impacted their level of enjoyment in travel-related activities. 35. At all relevant times, defendant Airbnb held and continues to represent itself out to the public as “a trusted community marketplace for people to list, discover, and book unique accommodations around the world.” 36. On the Airbnb website concerning trust, safety, and community standards, defendant indicates that its users “should trust that you will feel secure.” It provides that the user “should not spy on other people; cameras are not allowed in your listing unless they are previously disclosed and visible, and they are never permitted in private spaces (such as bathrooms or sleeping areas).” ~6- Complaint for Personal Injuries, Damages and Injunctive ReliefJ.H. Bornstein — Attorney At Law 2701 Telegraph Ave., Ste. 200, Email: jonathan@bornsteinlaw.com Tele: 510-901-0010 / Fax: 510-660-3590 37. Paragraph 14 of Airbnb’s Terms of Service, last updated November 1, 2019, provides that a user will not “violate or infringe anyone else’s rights or otherwise cause harm to anyone.” In addition, defendant Airbnb has publicly stated: “We require hosts to clearly disclose any security cameras in writing on their listings and we have strict standards governing surveillance devices in listings.” [Emphasis added.] Fussell, Sidney, “Airbnb Has a Hidden-Camera Problem.” The Atlantic, March 26, 2019, https://www.theatlantic.com/technology/archive/20 1 9/03/what-happens-when-you-find-cameras-your- airbnb/585007/. 38. Also, Airbnb spokesman Charlie Urbancic stated to NBC News: “We have strict policies regarding the proper disclosure of security cameras and take reports of any violations extremely seriously. The safety and privacy of our community is our priority.” Popken, Ben, “At Airbnb? You might be on camera, whether you like it or not.” NBC News, March 7, 2019, 1:20 pm PST, https://www.nbcnews.com/tech/security/airbnb-y ou-might-be-camera-whether-you-it-or-not-n974776. 39. Further, Airbnb prohibits its users from requesting, making, or accepting “a booking independent of the Airbnb Platform, to circumvent any Service Fees or for any other reason ...” Rentals are conducted strictly through Airbnb. 40. These affirmative acts by defendant of bringing lessors and lessees of real property together through its Internet portal and prohibiting them from brokering rentals independent of Airbnb places upon defendant, as operator, manager, agent, and/or entity in full or joint control of the leasing process of the subject premises, an obligation of ordinary care under the circumstances to avoid causing personal injury and to comply with applicable California or Texas laws as it relates to rental properties. 41. Yet, at all relevant times, in establishing an individual as a lessor within the Airbnb system, little to no effort is undertaken by defendant by way of a vetting process with respect to these hosts to ensure the safety and welfare of the third parties renting properties through Airbnb. 42. Asa general proposition and at all relevant times in the instant matter, defendant: (a) Fails/failed to engage in any meaningful background checks of the lessors; (b) Fails/failed to adequately and fully verify personal details of the lessors; (c) Fails/failed to verify information and details about the property being rented out by the lessors; and -7- Complaint for Personal Injuries, Damages and Injunctive Reliefid, CA 94612 J.H. Bornstein — Attorney At Law 2701 Telegraph Ave., Ste. 200, 02 (d) Fails/failed to implement policies and procedures to protect the common law, constitutionally and statutorily protected rights of privacy, and quiet enjoyment of lessees renting the properties through Airbnb. 43. By failing to engage in little, if any, investigation of lessors before allowing lessors to post their property on the Internet portal, defendant created and continues to create a foreseeable risk of harm to parties such as plaintiff who relies upon defendant’s representation that it has created “a trusted community marketplace for people to list, discover and book unique accommodations around the world.” 44. Defendant, upon information and belief, conducted no background investigation of the lessor, nor did defendant engage in any reasonable evaluation of the lessor prior to posting the subject premises upon the Internet portal, nor did defendant have reasonable policies and procedures in place in order to protect lessees who rely on Airbnb to rent property. 45. Defendant breached its obligation of ordinary care for these delineated reasons. 46. Moreover, defendant violated an ordinance, statute, regulation, law, and/or rule of a public entity which was adopted for the protection of a class of persons of which plaintiff is a member, including but not limited to relevant sections of the State of California Penal Code and the State of Texas Penal Code, including but not limited to California Penal Code Secs. 630, et seq., 632, 637.2, 646.7, 646.9, 647, Texas Penal Code Secs. 16.01, 16.02, 21.15, 21.16, 21.17, 21.19, 43.22, 43.23, among others. In addition, California Civil Code Secs. 1927, 1954, and 1708.8, inter alia, and Article I, Sec. 1 of the California Constitution, among others. Because of said violations, plaintiff suffered a harm which said laws were designed to prevent. 47, Real Estate brokers must be licensed in the State of California Pursuant to §10130 of the California Business and Professions Code and § 535.4 of the Texas Real Estate Commission Rules. 48. Defendant leased, offered to lease, placed for rent, solicited listings of places for rent, solicited prospective tenants and/or collected rent from real property, thereby falling within the definition of a real estate broker within § 10131 of the California Business and Professions Code and § 535.4 of the Texas Real Estate Commission Rules. -8- Complaint for Personal Injuries, Damages and Injunctive ReliefTele: 510-901-0010 / Fax: 510-560-3590 J.H. Bornstein ~ Attorney At Law 2701 Telegraph Ave., Ste. 200, Oakland, CA 94612 Email: jonathan@bornsteinlaw.com 49. Despite engaging in the activities delineated within §10131 of the California Business Records and Professions Code and § 535.4 of the Texas Real Estate Commission Rules, defendant does not hold a broker’s license in compliance with such sections. 50. Defendant’s acts and omissions and breach of statutes, codes, rules and/or standard of care, among other things, were a substantial factor in causing plaintiff harm. As a direct and proximate result of the defendants’ abuse, plaintiff suffered discomfort, annoyance, inconvenience, anxiety, economic loss, mental anguish, in an amount to be determined at trial 51. In doing the acts and omissions herein alleged, defendant acted with oppression, fraud, and malice, and plaintiff is entitled to exemplary damages. 52. The conduct of defendant alleged herein was illegal, criminal, oppressive, fraudulent, malicious, as defined in Civil Code Sec. 3294, and plaintiff should recover, in addition to actual damages, damages to make an example of and punish defendant. Furthermore, defendant’s acts and omissions were done with conscious disregard of plaintiff's rights. At all times mentioned herein, defendant acted willfully and with the wrongful intention of injuring plaintiff and from an improper or evil motive amounting to malice. Plaintiff is therefore entitled to punitive damages. SECOND CAUSE OF ACTION Intrusion of Privacy (Against all Defendants) 53. Plaintiff re-alleges and incorporates by reference the allegations set forth in preceding paragraphs of the Complaint. Where any of the allegations in the referenced paragraphs of this cause of action conflict, the plaintiff re-alleges the conflicting allegations in the alternative. 54. Atall times relevant herein, plaintiff had a legally protected right of privacy while staying within the subject premises. 55. Through defendant’s acts and omissions and breach of statutes, codes, rules and/or standard of care, among other things, including but not limited to Calif. CC §§ 1708.8, 1927, 1954, Cal. Penal Code Sec. 631, 632, 632.5, 632.6, 632.7, 637.2, 637.3, 632.7, inter alia., Texas Penal Code Secs. 16.02, 33.01, et. seq., 21.15, 21.16, 30.05, Tex. Civ. Prac. & Rem. Code Sec. 123.001, 123.002, et. seq. 143.001, as -9- Complaint for Personal Injuries, Damages and Injunctive ReliefJ.H. Bornstein — Attorney At Law 2701 Telegraph Ave., Ste. 200, Oakland, CA 94612 Tele: 510-901-0010 / Fax: 610-560-3590 Email: jonathan@bornsteinlaw.com 28 29 discussed herein, defendant and each of them enabled and/or ratified the violation of plaintiffs right to privacy. 56. The lessor, and by extension defendant Airbnb, engaged in conduct highly offensive and objectionable to a reasonable person. There is no competing or compelling interest in viewing and/or recording plaintiff in the property during the rental period. 57. Plaintiff alleges on information and belief that as a proximate and foreseeable result of the aforementioned conduct of defendant, plaintiff suffered extreme mental anguish, together with emotional and physical distress, injuring plaintiff in plaintiffs mind and body, all to plaintiff's damage in an amount to be ascertained at trial. 58. The conduct of defendant alleged herein was illegal, criminal, oppressive, fraudulent, malicious, as defined in Civil Code Sec. 3294, and plaintiff should recover, in addition to actual damages, damages to make an example of and punish defendant. Furthermore, defendant’s acts and omissions were done with conscious disregard of plaintiff's rights. At all times mentioned herein, defendant acted willfully and with the wrongful intention of injuring plaintiff and from an improper or evil motive amounting to malice. Plaintiff is therefore entitled to punitive damages. THIRD CAUSE OF ACTION Trespass (Against all Defendants) 59. Plaintiff re-alleges and incorporates by reference the allegations set forth in preceding paragraphs of the Complaint. Where any of the allegations in the referenced paragraphs of this cause of action conflict, the plaintiff re-alleges the conflicting allegations in the alternative. 60. The lessor engaged defendant to rent the subject premises out to third parties. 61. In doing so, the defendant acted as operator, manager, and/or entity in full or joint control of the leasing process of the property and/or, at minimum, acted as the agent of the lessor who have the obligation of refraining from trespassing upon the property. 62. Each use of the electronic device constituted an unauthorized entry upon the subject premises. -10- Complaint for Personal Injuries, Damages and Injunctive ReliefJ.H. Bornstein — Attorney At Law 2701 Telegraph Ave., Ste. 200, Oakland, CA 94612 ‘Tele: 510-901-0010 / Fax: 510-560-3590 Email: jonathan@bornsteinlaw.com 63. By failing to ensure that the subject premises did not contain such electronic devices despite asserting that plaintiff “should trust that you will feel secure”, defendant enabled the lessor to trespass upon the property and cause damage to individuals utilizing defendant’s platform and services, including any invitees on the property. 64. Defendant further allowed the trespass to occur upon the subject premises by failing to disclose the presence in the property of electronic devices capable of observing and/or capturing visual images and/or audio recordings, as well as physical impressions of plaintiff engaging in private, personal, or familial activity. 65. Plaintiff alleges on information and belief that as a proximate and foreseeable result of the aforementioned conduct of defendant, plaintiff suffered extreme mental anguish, together with emotional and physical distress, injuring plaintiff in plaintiffs mind and body, all to plaintiff's damage in an amount to be ascertained at trial. 66. The conduct of defendant alleged herein was illegal, criminal, oppressive, fraudulent, malicious, as defined in Civil Code Sec. 3294, and plaintiff should recover, in addition to actual damages, damages to make an example of and punish defendant. Furthermore, defendant’s acts and omissions were done with conscious disregard of plaintiff’s rights. At all times mentioned herein, defendant acted willfully and with the wrongful intention of injuring plaintiff and from an improper or evil motive amounting to malice. Plaintiff is therefore entitled to punitive damages. FOURTH CAUSE OF ACTION Fraud (Against all Defendants) 67. Plaintiff re-alleges and incorporates by reference the allegations set forth in preceding paragraphs of the Complaint. Where any of the allegations in the referenced paragraphs of this cause of action conflict, the plaintiff re-alleges the conflicting allegations in the alternative. 68. Defendant represented that plaintiff would be free from spying and intrusions into their personal and private affairs. -ll- Complaint for Personal Injuries, Damages and Injunctive ReliefJ.H. Bornstein — Attorney At Law , 2701 Telegraph Ave., Ste. 200, Oakland, CA 94612 901-0010 / Fax: 510-560-3590 jonathan@bornsteinlaw.com Tele: Em: 69. Those representations were false and made by defendant with knowledge of their falsity. Defendant’s representations were made fraudulently and maliciously with the intent to convince plaintiff that they would be free from spying and intrusions into their personal and private affairs if plaintiff decided to book the property through the Airbnb platform. 70. Plaintiff justifiably relied on defendant’s representations on the website and paid defendant for the use of the apartment. 71. As a direct and proximate result of defendant’s fraudulent conduct, plaintiff suffered special damages to be proven at the time of trial. Plaintiff suffered general damages, including, but not limited to, humiliation, shock, embarrassment, intimidation, physical distress and injury, fear, stress, and other damages to be proven at the time of trial. 72. The conduct of defendant alleged herein was illegal, criminal, oppressive, fraudulent, malicious, as defined in Civil Code Sec. 3294, and plaintiff should recover, in addition to actual damages, damages to make an example of and punish defendant. Furthermore, defendant’s acts and omissions were done with conscious disregard of plaintiff's rights. At all times mentioned herein, defendant acted willfully and with the wrongful intention of injuring plaintiff and from an improper or evil motive amounting to malice. Plaintiff is therefore entitled to punitive damages. FIFTH CAUSE OF ACTION Negligent Misrepresentation (Against all Defendants) 73. Plaintiff re-alleges and incorporates by reference the allegations set forth in preceding paragraphs of the Complaint. Where any of the allegations in the referenced paragraphs of this cause of action conflict, the plaintiff re-alleges the conflicting allegations in the alternative. 74. Defendant negligently represented that plaintiff would be free from spying and intrusions into their personal and private affairs. 75. When defendant made these negligent misrepresentations, defendant had no reasonable grounds to believe them to be true. Alternatively, defendant made these representations with the intention -12- Complaint for Personal Injuries, Damages and Injunctive ReliefJ.H. Bornstein — Attorney At Law 2701 Tele ph Ave., Ste. 200, Oakland, CA 94612 of inducing plaintiff to act in reliance on said representations in the manner herein alleged, or with the expectation that plaintiff would so act or refrain from acting. 76. Plaintiff justifiably relied on defendant’s representations on the website and booked the property through the Airbnb platform. 771. As a direct and proximate result of defendant’s fraudulent conduct, plaintiff suffered special damages to be proven at the time of trial. Plaintiff suffered general damages, including, but not limited to, humiliation, shock, embarrassment, intimidation, physical distress and injury, fear, stress, and other damages to be proven at the time of trial. 78. Plaintiff alleges on information and belief that as a proximate and foreseeable result of the aforementioned conduct of defendant, plaintiff suffered extreme mental anguish, together with emotional and physical distress, injuring plaintiff in plaintiffs mind and body, all to plaintiffs damage in an amount to be ascertained at trial. 79. | The conduct of defendant alleged herein was illegal, criminal, oppressive, fraudulent, malicious, as defined in Civil Code Sec. 3294, and plaintiff should recover, in addition to actual damages, damages to make an example of and punish defendant. Furthermore, defendant’s acts and omissions were done with conscious disregard of plaintiff's rights. At all times mentioned herein, defendant acted willfully and with the wrongful intention of injuring plaintiff and from an improper or evil motive amounting to malice. Plaintiff is therefore entitled to punitive damages. SIXTH CAUSE OF ACTION Intentional Infliction of Emotional Distress (Against all Defendants) 80. Plaintiff re-alleges and incorporates by reference the allegations set forth in preceding paragraphs of the Complaint. Where any of the allegations in the referenced paragraphs of this cause of action conflict, the plaintiff re-alleges the conflicting allegations in the alternative. 81. Plaintiff alleges on information and belief that the defendants’ conduct, as specified above and throughout, was intentional, malicious and done for the purpose of causing plaintiff to suffer mental anguish, together with emotional and physical distress. -13- Complaint for Personal Injuries, Damages and Injunctive ReliefTele: 510-901-0010 / Fax: 510-560-3590 J.H. Bornstein — Attorney At Law 2701 Telegraph Ave., Ste. 200, Oakland, CA 94612 Email: jonathan@bornsteinlaw.com 82. Said conduct abused defendants’ position and gave defendants power to damage plaintiff's interests. Plaintiff further alleges on information and belief that the defendants knew or should have known that plaintiff was particularly susceptible to injury through mental distress and acted unreasonably with the recognition that the acts and/or omissions were likely to result in such illness. 83. Plaintiff alleges on information and belief that as a proximate and foreseeable result of defendant’s aforementioned conduct, plaintiff suffered extreme mental anguish, together with emotional and physical distress, injuring plaintiff in plaintiffs mind and body, all to plaintiffs damage in an amount to be ascertained at trial. 84. | The conduct of defendant alleged herein was illegal, criminal, oppressive, fraudulent, malicious, as defined in Civil Code Sec. 3294, and plaintiff should recover, in addition to actual damages, damages to make an example of and punish defendant. Furthermore, defendant’s acts and omissions were done with conscious disregard of plaintiffs rights. At all times mentioned herein, defendant acted willfully and with the wrongful intention of injuring plaintiff and from an improper or evil motive amounting to malice. Plaintiff is therefore entitled to punitive damages. SEVENTH CAUSE OF ACTION Negligent Infliction of Emotional Distress (Against all Defendants) 85. Plaintiff re-alleges and incorporates by reference the allegations set forth in preceding paragraphs of the Complaint. Where any of the allegations in the referenced paragraphs of this cause of action conflict, the plaintiff re-alleges the conflicting allegations in the alternative. 86. Plaintiff alleges on information and belief that defendants’ conduct together, as specified above and throughout, was negligent and had the foreseeable result of causing plaintiff to suffer mental anguish, together with emotional and physical distress. 87. Plaintiff alleges on information and belief that as a proximate and foreseeable result of the aforementioned conduct of defendant, plaintiff suffered extreme mental anguish, together with emotional and physical distress, injuring plaintiff in plaintiff’s mind and body, all to plaintiff's damage in an amount to be ascertained at trial. -14- Complaint for Personal Injuries, Damages and Injunctive ReliefB a Q Tele: 510-901-0010 / Fax: 510-560-3590 Email: jonathan@bornsteinlaw.com a oo J.H. Bornstein — Attorney At Law 2701 Telegraph Ave., Ste. 200, Oakland, CA 94612 19 88. The conduct of defendant alleged herein was illegal, criminal, oppressive, fraudulent, malicious, as defined in Civil Code Sec. 3294, and plaintiff should recover, in addition to actual damages, damages to make an example of and punish defendant. Furthermore, defendant’s acts and omissions were done with conscious disregard of plaintiff's rights. At all times mentioned herein, defendant acted willfully and with the wrongful intention of injuring plaintiff and from an improper or evil motive amounting to malice. Plaintiff is therefore entitled to punitive damages. EIGHTH CAUSE OF ACTION Violation of Business Professions Code Sec. 17200, et seq. (Against All Defendants) 89. Plaintiff re-alleges and incorporates by reference the allegations set forth in preceding paragraphs of the Complaint. Where any of the allegations in the referenced paragraphs of this cause of action conflict, the plaintiff re-alleges the conflicting allegations in the alternative. 90. Plaintiff brings this cause of action against defendant for Violation of California Business and Professions Code (“B&P Code”) Sec. 17200, et seq. 91. The California Business and Professions Code (“B&P Code”) Sec. 17200, et seq. (the “Unfair Business Practices Act”) prohibits unfair competition in the form of any unlawful, unfair or fraudulent business act or practice. 92. B&P Code § 17202 provides that “[N]otwithstanding Section 2289 of the Civil Code, specific or preventative relief may be granted to enforce a penalty, forfeiture, or penal law in case of unfair competition.” 93. B&P Code § 1703 provides that the Court may restore to any person in interest any money or property which may have been acquired by means of such unfair competition. 94. B&P Code § 17204 allows “any person who has suffered injury in fact and has lost money or property as a result of such unfair competition’ to prosecute a civil action for violation of this code.” 95. B&P Code § 17204 allows “any person acting for the interest of itself, its members or the general public” to prosecute a civil action for violation of the Unfair Business Practices Act. ~15- Complaint for Personal Injuries, Damages and Injunctive Reliefg g BS 2g 2 Bs oe wg ed 85 Sg 2: Sa se Bs So s & g é < BO aC 3g 28 Sa £6 Eo 3s, 28