Demurrer in PATRICK WHITE vs. SHR PALO ALTO, LLC, et al.| Trellis.Law

On July 14, 2017 a Motion-Secondary was filed involving a dispute between White, Patrick, and Does 1 - 10, Inclusive, Dtrs Palo Alto, Llc, Four Seasons Hotels Limited, A Canada Corporation, Shr Palo Alto, Llc, Strategic Hotels & Resorts, Llc, A Delaware Limited Liability Company, for civil in the District Court of San Mateo County.

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BLANK ROME LLP I" ' '
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Ana Tagvoryan (SBN 246536) -

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Safia G. Hussain (SBN 251123) SAN MATEO COUNTY
SI-Iussain@BlankRome.com
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Harrison Brown (SBN 291503) JAN 0 9 2018
HBrown@BlankRome.com
2029 Century Park East, 6th Floor Clerk Of perior Conn
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Los Angeles, CA 90067 By
Telephone: (424) 23 9—3400 - Wain“
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Facsimile: (424) 23 9-3434
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Attorneys for Defendants,
STRATEGIC HOTELS & RESORTS LLC
00 and SHR PALO ALTO. LLC
\O SUPERIOR COURT OF THE STATE OF CALIFORNIA

10 FOR THE COUNTY OF SAN MATEO

11 PATRICK WHITE, individually and on behalf of all CASE NO. 17CIV03178
similarly situated individuals,
12 Assigned to the Honorable Judge Robert D,
Plaintiff, Foiles, Department 21
13
vs. MEMORANDUM OF POINTS AND
14 AUTHORITIES IN SUPPORT OF
STRATEGIC HOTELS & RESORTS, LLC, a DEMURRER TO PLAINTIFF’S FIRST
_15 Delaware limited liability company, FOUR AMENDED CONIPLAINT BY
SEASONS HOTELS LIMITED, a Canada DEFENDANTS STRATEGIC HOTELS &
16 corporation, and DOES 1 through 10, inclusive, RESORTS LLC AND SHR PALO ALTO,
LLC
17 Defendants.
(Notice of Demurrer and Demurrer,
18 Declaration of Soﬁa G. Hussaz'n, and
[Proposed] Order ﬁled concurrently
19 herewith) N
‘<
20 Hearing:
Date: February 21, 2018 1
21 Time: 9:00 am. 9'
22
Location: W @3
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23
i _

Complaint Filed: July 14, 2017
24 Remanded: November 8, 2017
Trial Date: Not Set
25
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26 .
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Memorandum of Points and Authorities in
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NIEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
.NLEMORANDUM 0F POINTS AND AUTHORITIES
1. INTRODUCTION

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Plaintiff Patrick White (‘Tlaintiﬁ") alleges that when he stayed at the Four Seasons Hotel

Silicon Valley at East Palo Alto (the “Hotel”) sometime in 2017, the receipt “Defendants provided

him” contained more than the last ﬁve digits of his Visa credit card and the card’s expiration date.

According to Plaintiff, this violates the Fair and Accurate Credit Transactions Act of 2003, Pub. L.
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108-159, codiﬁed at 15 U.S.C. §§ 1681 et seq. (‘TACTA” or the “Act”), which limits what credit

card information can be printed on paper receipts handed to a customer at the point of sale. To

recover for this alleged statutory breach, Plaintiff brings a single count for ‘ﬁNillful” violation of the
10 Act against Four Seasons Hotels Limited (“Four Seasons”), which he describes as the manager of the

11 Hotel; Strategic Hotels & Resorts LLC (“Strategic Hotels”), which he describes as the owner of the
12 Hotel; and SHR Palo Alto, LLC (“SHR,” and together with Strategic Hotel, the “SHR Defendants”),

13 which he does not describe at all.1 Plaintiff’s First Amended Complaint (“Amended Complaint”)
14 against the SHR Defendants, however, fails in multiple ways to state sufﬁcient facts to, support a

15 claim for a willful FACTA violation by either or both of them.

16 As an initial matter, Plaintiff relies on impermissible group pleading, lumping Strategic

17 Hotels and SHR together with a separate and independent defendant, Four Seasons, without
13 differentiating between the conduct of each defendant. Courts in this state have found that such

20 I
On November 21, 2017, Plaintiff amended the operative complaint “by inserting [SHR] in place of
the ﬁctitious name [DOE 1] where it appears in the operative complaint.” (Pl.’s Am. to Compl._—
21.
Fictitious Name (Doe 1) at 2.) During the parties’ meet and confer regarding this demurrer, counsel
22 for Plaintiff stated that the intent of the amendment was to substitute SHR for Strategic Hotels,
rather than add it as an additional defendant, and that counsel for Plaintiff would prepare a
23 stipulation to make that amendment clear. Plaintiff’s counsel has not done so, and so it remains the
case that SHR is inserted “where [Doe 1] appears in the operative complaint.” (See Declaration of
--~24 Saﬁa G. Hussain.) “Doc 1,” however, does not appear anywhere in the'Ainended Complaint except
25
the caption, and is not even included in the pleading’s deﬁnition of “Defendants.” (Am. Compl. at
2:1-4 (deﬁning “Defendants” collectively as Strategic Hotels & Resorts LLC and Four Seasons
Hotels Limited).) Plaintiffs failure to include any factual allegations relating to SHR is reason alone
to sustain the demurrer as to the single claim against SHR. Nonetheless, out of an abundance of
27 caution should the Court determine that Plaintiff’s deﬁnition of “Defendants” nonetheless includes
SHR, or should Plaintiff’s counsel substitute SHR for Strategic Hotels during the pendency of this
28 demurrer, SHR joins in the remaining arguments made in support of the demurrer herein.

l51260.00201/106345904V3 l 17CTV03178
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
indiscriminate group pleading-isiuncertain becauseit. fails to state the essential facts-.zupon whichza
.

determination of the‘controversy depends Twith clearness. and precision. This. isespecially important
LI.)
given that FACTA is targeted at the merchant who actually operates the point-of-sale system that

prints the receipts.

Indeed, the sole paragraph in the entirety of the Amended Complaint that even mentions the

moving defendants simply alleges—without more—that Strategic Hotels “owns” the Hotel that
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printed the allegedly violative “receipt.” But this assertion at best supports an inference of passive
ownership; itdoes not plausibly suggest that Strategic Hotels operates, manages, or controls the

operation of the Hotel. Plaintiff does not assert any factual allegations regarding the relationship

10 between Strategic Hotels and any other defendant, and does not assert any factual allegations

11 regarding SHR. Plaintiff also does not allege any facts to suggest that either Strategic Hotels or SHR
12 played any role in the process by which “receipts” were printed and “provided” to guests of the
13 Hotel.

14 Second, in order to state a claim for a violation of FACTA, Plaintiff must allege that he was a

15 credit or debit card holder, that the SHR Defendants accept credit cards or debit cards for the

16 transaction of business, and that, at the time he paid for goods or services using such card, he was

17 personally handed a printed receipt by the SHR Defendants that did not comply with FACTA’s
18 truncation requirements. Critically, Plaintiff here faiis to allege facts supportn any of these

19 elements beyond stating that Plaintiff possesses a Visa credit card; he does not allege that Strategic

20 Hotels or SHR accept credit cards or debit cards for the transaction of business, he does not allege
21 that Strategic Hotels 0r SHR printed a receipt at the point of sale, and he does not allege that
22 Strategic Hotels or SHR handed him the so—called “receipt.” The absence of any factual allegations

23 supporting these required elements of a FACTA violation warrant granting the SHR Defendants’

24 demurrer.

25 Finally, Plaintiff only conclusorily alleges that the SHR Defendants “willfully” violated

26 FACTA, which requires knowing or reckless disregard. An allegation that FACTA has been in
27 effect for mom than a decade and that other, unnamed entities have complied with it says nothing at

28 all about Strategic Hotels” or SHR’s state of mind, let alone support an inference that either acted in

151260.00201/106345904vs 2 17CTV03178
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
knowing-or reek-less. disregard of- the Act’s requirements. Nor do Plaintiff" sunsupported musing-Sven
what Others may have told “Defendants” collectively “about FACTA” at some past point in time

plausibly allege scienter as to Strategic Hotels, a mere alleged owner of the Hotel, or SHR, whose

relationship to the Hotel
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is not alleged at 311.

_Based on the foregoing reasons and those detailed herein, the SHR Defendants’ demurrer to

Plaintiffs First Amended Complaint, and the single claim for willful violation of FACTA against

them, should be granted, with prejudice.

II. RELEVANT FACTS
A. Plaintiff’s Allegations.
Plaintiff commenced this class action on July 14, 2017 in the Superior Court of the State of
California for the County of San Mateo, and it was removed to the United States District Court for

the Northern District of California on August 22, 2017. (Dkt. No. 1.) It was remanded to this Court
on November 9, 2017.

Plaintiff ﬁled the Amended Complaint, which is the operative pleading, on September 28,

2017. Plaintiff alleges
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that sometime in 2017, he used a credit card to pay for a hotel stay at the

Hotel. (Am. Compl. 119.) Plaintiff further alleges that the receipt printed and provided to him by the
Hotel contained more than the last ﬁve digits of the credit card account number and the expiration

date of the credit card. (1d,) Based on these allegations, Plaintiff asserts that “Defendants”

(collectively) willfully violated FACTA. (Id ll 11.)
The Amended Complaint alleges that defendant Four Seasons “manages” (the Hotel, while
Strategic Hotels “owns” the Hotel. (Id. W 2-3.) Nothing more is alleged with respect to Strategic

Hotels’ purported management or ownership of the Hotel, or as to the relationship between the three

named defendants and their involvement in the operation of the Hotel, including in the point—of—sale
system that printed the “receipt.” Indeed, nothing at all is alleged with respect to SHR?"

Plaintiff seeks to represent a nationwide class of purportedly similarly—situated persons. (Id.

1121.)

M
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151260.0020‘1/106345904v1'» 3 1701\7031 78
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
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This is the third'lawsuit filed against Four Seasons asserting a FACTA claim.2 Although

in all of the
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Four Seasons is named as a defendant three lawsuits as the purported manager hotels

that printed the receipts at issue, each of the hotels is allegedly owned by different entities which,

like Strategic Hotels, appear to be named as defendants solely on the basis of ownership. But for the

substitution of the parties’ names, the complaints ﬁled in each of the three actions contain similar

generic
KOOOQGU}
allegations regarding the property owners’ purported liability and willfulness. To name the

owners simply for the chance to discover facts later is improper and should not be countenanced.

m. STANDARD ON DEMURRER
10 A demurrer tests the sufﬁciency of a complaint by challenging defects that appear on its face
11 or in judicially noticeable matters outside of the complaint. See Blank v. Kirwan, 39 Cal. 3d 311,

12 318 (1985). A plaintiff must “set forth in his complaint the essential facts of his case with
reasonable precision and with sufﬁcient clarity and particularity that the defendant may be apprised

14 of the nature, source and extent of his cause of action.” Metzenbaum v. Metzenbaum, 86 Cal. App.

15 2d 750, 7—53 (1948). On demurrer, a court treats as true any properly pleaded factual allegations; i.e.,

16 those that are “speciﬁc, not vague or conclusory.” Rakeslraw v. California Physicians’ Sent, 81

17 Cal. App. 4th 39, 44 (2000). However, courts do not assume the truth of “contentions, deductions,

18 or conclusions of fact or law.” Young 1:. Gannon, 97 Cal. App. 4th 209, 220 (2002). Further,

19 “[d]oubt in the complaint may be resolved against plaintiff and facts not alleged are presumed not to
20 exist.” Kramer v. Intuit Inc., 121 Cal. App. 4th 574, 578 (2004) (quotation marks omitted). A court
21

_ 22 3
On June 26, 2017, Plaintiff‘s counsel ﬁled a complaint captioned Steven Brooks v. Hualalai
23 Investors, LLC and Four Seasons Hotels Limited, et al. (the “Brooks” case) in the Circuit Court of
the Third Circuit in the State of Hawai’i, which was removed to the United States District Court for
24 the District of Hawai’i by the defendants on July 26, 2017, as Case No. 17-00364. On July 28, 2017,
Plaintiffs counsel ﬁled a complaint captioned Scott Edelsi‘ein and Steven Brooks v. Westlake
25
Wellbeing Properties, LLC and Four Seasons Hotels Limited, et al. (the “Edelstein” case) in the
26 Superior Court of the State of California for the County of Los Angeles, Case No. BC669646, which
was removed to the United States District Court for the Central District of California by the
27 defendants on September 1, 2017 and subsequently remanded on November 15, 2017. The Court
may take judicial notice of the dockets of and ﬁlings in other courts as official records not subject to
28 reasonable dispute and capable of accurate and ready determination. See Cal. Evid. Code § 452(d).

151260.00201/106345904v3 4 17ClV03178
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
must- sustain a demurrer. when- the complaintisafactua1:allegations are insufﬁcient to__statea cause-of .;..=";a-..-.

action, Or if those allegations disclose a defense or bar to recovery. See Cal. Civ. Proc. Code §

430.10(e); CrossTalk Prods, Inc. v. Jacobson, 65 Cal. App. 4th 631, 635 (1998).

IV. ARGUMENT
A. Plaintiff Resorts to Improper Group Pleading.
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A complaint that lumps together multiple defendants in one broad allegation, without

identifying what action each defendanttook that caused plaintiff’s alleged harm, is subject to Special

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demurrer for uncertainty. Cal. Civ. P. Code § 430.10(f). This is because, “in a pleading, the

essential facts upon which a determination of the controversy depends should be stated with
10 clear-ness and precision so that nothing is left to surmise.” Ankeny v. Lockheed Mssz'les & Space

11 Ca, 88 Cal. App. 3d 531, 536 (1979). When, as here, a complaint resorts to generalized allegations

12 against defendants as a whole and treats disparate parties identically without explanation, it failsto

13 provide “a statement of the facts constituting the cause of action, in ordinary and precise language,”

14 against each defendant. Cal. Civ. P. Code § 425.10(a)(1). A demurrer to an offending complaint

15 should be sustained, because such improper “lumping” fails to apprise each defendant of its alleged
16 wrongdoing and the grounds for the claims against it. See L ’Esperance v. HSBC Consumer Lending,

17 Inc, No. 11—55’, 2012 WL 2122164, at *6 (D.N.H. June 12, 2012) (dismissing FACTA claim for
18 failure to delineate each defendant’s role in the allegedly unlawful act); Bracamontes v. Chase Home

19 Fin. LLC, No. 10-03888, 2011 WL 332527, at *3 (ND. Cal. Jan. 31, 2011) (dismissing claim where

plaintiff failed to identify which lender failed to provide him a credit score in violation of FACTA).3

21 Cf Buccella v. Mayo, 102 Cal. App. 3d 315, 325 (1980) (reversing entry of judgment against

22 defendant where defendant was “mostly lumped together with the other defendants” in plaintiff’s
23 allegations).

24 This improper group pleading infects the entire Amended Complaint Plaintiff wholly fails
25 to describe each defendant’s alleged separate acts or wrongdoing giving rise to the asserted FACTA
26

27 3
In the absence of controlling authority in the state courts, California state courts may defer to
federal court decisions interpreting the relevant law. See, e.g.,Farrell v. Payday California, Inc,
28
190 Cal. App. 4th 1419, 1433 (2010).

151760.0020l/10634S904v 3 5 17CTVO3178
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
violation. indiscriminately»lumps.Strategicazl-lotels.,and--S.HR-.
....~Rather,;.Plaintiff- together..~.with .a -.
.. a;

separate and independent company, Four éeasons, as well as with nine “Doe” entities, under‘the
‘

AWN singular label of “Defendants,” and then purports to assert collective liability against all. (See Am.

Compl. ‘lﬁl 5-1 1,15-17, 27, 35—47.) This does not permit the Sl—lR Defendants to defend against or

even understand the nature of the allegations and claims against them; rather, they are left to surmise

the facts upon which their purported liability is based. The sole paragraph that actually mentions

Strategic
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Hotels by nainewrelating to its principal place of business and alleged ownership of the
Hotel (discussed further below)—does not set forth any facts alleging how Strategic Hotels violated

FACTA. (See id.TI 2.) Indeed, this paragraph fails to allege any wrongdoing by Strategic Hotels.

10 And, as set forth above, there are no allegations that mention SHR (or “Doe 1"”)by name. As such,

ll the SI-IR Defendants’ demurrer to the First Amended Complaint, on the ground of uncertainty is

12 warranted.

l3 B. Plaintiff Fails To Allege the Elements of a FACTA Claim.
14 The relevant section of FACTA provides:
15 Except as otherwise provided in this subsection, no person that accepts credit cards or
debit cards for the transaction of business shall print more than the last 5 digits of the
16 card number or the expiration date upon any receipt provided to the cardholder at the
point of the sale or transaction.
17

18 15 U.S.C. § 16810(g)(l). To state a claim against either of the SHR Defendants, then, Plaintiff must

19 allege that (1) Strategic Hotels and SHR accept credit cards or debit cards for the transaction of
business; (2) Plaintiff was a credit or debit cardholder; (3) Plaintiff paid for goods or services using

21 that card; (4) Strategic Hotels and SHR printed a paper receipt for that payment; (5) the paper receipt

22 was physically handed to Plaintiff by Strategic Hotels and SHIi at the time of sale; and (6) the

printed receipt contained more than the last ﬁve digits of the card number or the expiration date. See

24 Simonoﬂv. Expedia, Inc, 643 F.3d 1202, 1210 (9th Cir. 2011); Andrade v. Desert Champions LLC,

25 113 F. Supp. 3d 1020, 1025 (ND. Cal. 2015).
26 Plaintiffs sole factual allegations about his transaction at the Hotel are wholly contained in a

27 single paragraph of the Amended Complaint, which states:

28 .’//

151260.00201l106’i45904v 3 6 l7CTV03178
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
-
2017,. Plaintiff White was a Visa credit card
2.51321“ holder. In 2017, Plaintiff Whiteused, ,:- -.

his Visa credit card to pay for his hotel stay at the Four Seasons Hotel Silicon Valley
at East Palo Alto. Defendants provided him with a printed receipt for his payment,
and the paper receipt was handed to Plaintiff White personally when this payment
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transaction occurred. The printed receipt that Defendants provided to him contained
more than the last ﬁve digits of the credit card account number and the expiration
date of his credit card, in ‘violation of 15 U.S.C. § 168lc(g).

(Am. Comp]. ﬂ 9.) Plaintiff has failed to allege sufficient facts to support the ﬁrst, fourth, or ﬁfth

elements
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of a FACTA claim. Even assuming, arguendo, that a hotel statement qualiﬁes as a

“receipt” under FACTA, Plaintiff’s barebones allegations fallshort of alleging that Strategic Hotels

and SHR accepted Plaintiff’s credit card, that Strategic Hotels and SHR printed a receipt, or that the

receipt provided to Plaintiff was physically handed to Plaintiff by Strategic Hotels and SHR at the

time he paid for his stay. Logically, a passive property owner cannot “accet credit cards or debit

cards for the transaction of business.” Indeed, Plaintiff does not delineate either Strategic Hotels or

SHR’S purported role in, control over, or management of this transaction or the point-of—sale system

that printed the “receipt.” Plaintiff thus has failed to state a cause of action for a violation of
FACTA against either SHR Defendant, and the SHR Defendants” demurrer should be sustained.4

C. Plaintiff Fails To Allege Ownership Liability.
“It is axiomatic that a FACTA complaint must sufﬁciently allege that the listed Defendant is

liable for the alleged wrong.” Bouton v. Ocean Props, Ltd, 201 F. Supp. 3d 1341, 1346 (SD. Fla.

2016). In determining whether a plaintiff asserting a FACTA claim has plausibly alleged that each

defendant is liable for the alleged violation, a court may properly analyze issues of corporate

ownership and subsidiary liability without converting the motion into one for summary judgment.

See id. Plaintiff here does not clearly identify under what theory of lability he seeks to hold the SHR

Defendants liable for the alleged FACTA violation by the Hotel, which omission alone warrants

dismissal of his claim for failure to put the SHR Defendants on notice of the claim asserted against

them. See Powell, 2010 WL 2133011, at *2-3.

4
Other paragraphs scattered throughout the Amended Complaint do not contain factual allegations
about Plaintiffs purported transaction with defendants, but merely parrot the statutory language.
(See, e.g., Am. Compl. W 35, 36, 39.) Such mere formulaic recitations of the FACTA provisions
fail to set forth a “statement of the facts constituting the cause of action,” Cal. Civ. P. Code §
425.10(a)(l), and thus are insufficient to salvage his claim.
151760.002011106345904VS 7 l7ClV03l78
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
-
-,
.
.
;- Plaintiff-has
-.-First; failedto state a claim-against either Strategic-Hotels or. SHRsfondirect .:.11.51.».

liability. Second, Plaintiff has failed to allege that either SHR Defendant is vicariously liable under

FACTA. The decisive issue for determining vicarious liability is whether the entity sought to be
45L»)

held vicariously liable exercised control over the other’s business operations. See Patterson v.

Denny’s Corp, No. 07-1611, 2008 WL 250552, at *2 (W.D. Pa. Jan. 30, 2008). As stated above,

there are no allegations speciﬁc to SHR in the entirety of the Amended Complaint, including with

respect to its relationship to the Hotel or any other defendant. And the sole paragraph speciﬁc to
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Strategic Hotels merely alleges that Strategic Hotels “owns the Four Seasons Hotel Silicon Valley at

East Palo Hotel.” (Am. Compl. 112.) But this single statement alleges, at best, only a passive

10 ownership interest in the Hotel, and does not allege that Strategic Hotels actually controls, operates,

11 or manages the operation of the Hotel. Nor does it allege that Strategic Hotels had any role with

12 regard to the “receipts” that are “printed” and “provided” to the guests of the Hotel. Plaintiff thus
13 fails to set forth any basis to impute the alleged violative conduct to either SI-lR Defendant, and his

14 claim against them should be dismissed. See Bouton, 201 F. Supp. 3d at 1346—48 (ﬁnding that

15 allegations of mere ownership were not sufficient); see also Patterson v. Denny’s Corp, No. 07-

16 1161, 2008 WL 250552, at *2 (W.D. Pa. Jan. 30, 2008) (stating that a plaintiff must allege facts

17 demonstrating a defendant’s control over business operations).

18 D. Plaintiff Fails To Plead That the SHR Defendants Acted Willfully.
19 Not only is the Amended Complaint devoid of any facts to support a FACTA claim against

20 the SHR Defendants, but the statute requires that a plaintiff pr0ve willfulness in order to recover
'

21 statutory damages devoid of actual harm. 15 U.S.C. § 1681n(a). Here, Plaintiff seeks statutory and

22 punitive damages (Am. Compl. W 43—47); it is essential, therefore, that Plaintiff allege facts

23 demonstrating that the SHR Defendants acted willfully. See Andraa’e, 113 F. Supp. 3d at 1025. To

24 satisfy the willfulness requirement, Plaintiff must plead facts that would support a reasonable

25 inference that the SHR Defendants knowingly or recklessly violated the statute. See id; see also

26 Safeco Ins. Co. ofAm. v. Burr, 551 US. 47, 69 (2007) (deﬁning recklessness as .“conduct violating

27 an objective standard: action entailing ‘an unjustiﬁably high risk of harm that is either known or so

obvious that it should be known’”).

l51260.00201/106345904v3 8 l7CW03l78
lVIEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
I Preliminarily, :it-i—simpossible to ascribe. any -state;of mind to: Strategic Hotels. or-.:SHRin-the

absence of any alleged misconduct by or properly attributable to either, and indeed, Plaintiff does
not do so. Rather, the bases upon which Plaintiff relies for a ﬁnding of willfulness appear in three

generalized allegations:
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(l) FACTA has been in existence for more than a decade (Am. Comp]. 1[39);

(2) “on information and belie ,” at some unspeciﬁed point in the past, unidentiﬁed credit card

companies, companies that sell cash registers, law ﬁrms, and “other entities” informed “Defendants”

(collectively) in some unspeciﬁed manner “about FACTA” (id. “ﬂ40); and

(3) “[m]any” of “Defendants” (collectively) unidentiﬁed peers and competitors comply with

FACTA (id. 1]42).

These specious allegations are insufﬁcient to support Plaintiff s claim against the SHR Defendants

for willful violation of the statute.
The fact that FACTA was enacted in 2003 and that unnamed others may comply with it says
nothing about what, if anything, Strategic Hotels or 81-13 did, let alone knew, intended, or

objectively believed
MNNr—Ap—Ay—AHp—Il—ai—Ai—Ai—di—A

about the Act’s requirements when so acting; indeed, these conclusory

allegations say nothing at all about either SHR Defendant. See Gardner v. Appleton. Baseball Club,

Inc., No. 09-C-705, 2010 WL 1368663, at *6 (ED. Wis. Mar. 31, 2010) (ﬁnding that general facts
about the law itself and “other, unnamed companies’ response to the law . .. could be alleged against

any alleged FACTA violator, and as such they are essentially boilerplate” (emphasis in original));
Huggins v. SpaClim'c, LLC, No. 09-2677, 2010 WL 963924, at *2 (ND. Ill. Mar. 11, 2010)

(allegations that FACTA’S requirements were well publicized and that credit card companies

required compliancewith the statute were not speciﬁc to defendant and thus did not support a claim

for willful violation).
Plaintiffs speculation that, “on information and belief,” some unidentiﬁed entities may have,

at some unSpeciﬁed point in time, informed “Defendants” collectively “about FACTA” in some way

likewise fails to plausibly allege scienter as to Strategic Hotels or SHR, much less intentional

conduct. Plaintiff has alleged no facts demonstrating any involvement whatsoever by Strategic

151260.00201/106345904v3 9 17CTV03178
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
gHotels-sor- SHR--i~n-—.the -.operat-ien; of-the» Hotel, on.~in~.the operational process-tliatzresultssin-attic. _- ~.»=_-..--:.-

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“receipts” being provided to guests by the Plotel (including the point—of-sale system). 5

Numerous courts have found speculative and conclusory allegations, like those here,

insufficient to sustain a claim for willful violation of FACTA. See, e. g.,Alexander 1:.Golden

Nugget, Inc, No. 13-02005, 2014 WL 12576611, at *2 (D. Nev. July 18, 2014) (allegations of
publicitysurrounding
\OOOQO‘tl/I-P
FACTA and incomplete compliance at all store locations were insufﬁcient to

support a willful violation claim); Sec V. CC CJV American Holdings, Inc., No. 11—05031, 2011 WL
4946507, at *2 (CD. Cal. Oct. 18, 2011) (the “fact that information was available to [the defendant]

does nothing to support [the] naked assertion that [the defendant] was notified of FACTA’s
I
I

10 provisions and knowingly ignored them”). This Court should do the same.

11 V. CONCLUSION
12 For the foregoing reasons, the SHR Defendants respectfully requests that their demurrer to

13 Plaintiffs First Amended Class Action Complaint, and the single cause of action asserted against the
14 SHR Defendants, be sustained.

16 DATED: January 9, 2018 BLANK ROME LLP
17
Bv: /s/Saﬁa G. Hussain
‘
18 Ana Tagvoryan
Saﬁa G. Hussain
19 Harrison Brown
Attorneys for Defendants,
2O STRATEGIC HOTELS & RESORTS LLC and
SHR PALO ALTO, LLC
21

~24

25 5
The SHR Defendants expect that Plaintiff will cite to bed v. M—I, LLC, 853 F.3d 492 (9th Cir.
26 2017), but that case is not instructive here. There, the court found that the plaintiff had adequately
alleged a willful violation of a separate provision of the FCRA (not FACTA) where it was
undisputed that the defendant’s conduct was intentional such that willfulness could be determined as
'
a matter of law. Here, Plaintiff has not alleged any conduct by or attributable to Strategic Hotels or
28
SHR, let alone that any conduct was intentional.

151260.00201/106345904v_3 10 17C1V03 l 78
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER

Case Info

Judge

V. Raymond Swope Track Judge’s New Case

Case No.

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Document Filed Date

January 09, 2018

Case Filing Date

July 14, 2017

County

Parties

DOES 1 - 10, INCLUSIVE Defendant
DTRS PALO ALTO, LLC Defendant
ELLIS, STEVEN A. Attorney for the Defendant
FOUR SEASONS HOTELS LIMITED, A CANADA CORPORATION Defendant
KATOFSKY, ALEX P Attorney for the Plaintiff
SHR PALO ALTO, LLC Defendant
STRATEGIC HOTELS & RESORTS, LLC, A DELAWARE LIMITED LIABILITY COMPANY Defendant
TAGVORYAN, ANA Attorney for the Defendant
WHITE, PATRICK Plaintiff
Anjali Moorthy Attorneys for Defendants
Harrison Brown Attorney
Kenneth Gaines Attorney
Daniel Gaines Attorneys for Plaintiffs
Evan Gaines Attorneys for Plaintiffs
Erika Schulz Attorney
Todd Boock Attorney
Elizabeth Low Attorneys for Defendants
Safia Hussain Attorney
Miriam Schimmel Attorneys for Plaintiffs
Theona Zhordania Attorneys for Defendants

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Motion-Secondary: PATRICK WHITE vs. SHR PALO ALTO, LLC, et al.

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Case Info

Parties