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

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
Ana Tagvoryan (SBN 246536)
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Los Angeles, CA 90067 —
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Attorneys for Defendants,
SHR PALO ALTO, LLC AND DTRS PALO ALTO, LLC

SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SAN MATEO
11 SOUTHERN BRANCH: HALL OF JUSTICE AND RECORDS
12
PATRICK WHITE, individually and on behalf of all Case No. 17—CIV-03 178
13 similarly situated individuals,
OPPOSITION BY DEFENDANTS SHR
14 Plaintiff, PALO ALTO, LLC AND DTRS PALO
ALTO, LLC TO PLAH‘ITIFF PATRICK
‘15 vs. WHITE’S EX PARTE APPLICATION
TO STAY PROCEEDINGS OR, IN THE
16 SHR PALO ALTO, LLC, a Delaware limited ALTERNATIVE, CONTINUE
liability company, FOUR SEASONS HOTELS HEARING ON DEMURRER
17 LIMITED, a Canada corporation, DTRS PALO
ALTO, LLC, a Delaware limited liability company, Ex Parte Hearing:
18 and DOES 3 THROUGH 10, inclusive, Date: August 2, 2018
Time: 2:00 P.M.
19 Defendants. Place: Law and Motion Courtroom
400 County Center
20 Redwood City, CA 94063
21 Original Complaint: July 14, 2017
Second Am. Complaint: June 18, 2018
22 Trial Date: Not Set
23

25
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26 OPP _ _

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28 1111111111111
151260.00201/110942877v.2
OPPOSITION BY DEFENDANT S SHR PALO ALTO, LLC AND DTRS PALO ALTO, LLC TO PLAINTIFF
PATRICK WHITE’S FY PA RTF‘ APPI ICATTON TO STAY PR OCFFDINGS OR CONTTNT TF‘. DFMI TRRFR
MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION.
There is no emergency here, and Plaintiff Patrick White’s (“Plaintiff”) instant Ex Parte

A Application to stay proceedings or continue the hearings on the pending demurrers (“Application”)

pending coordination should be denied for several reasons. First, having commenced this case and

the alleged “identica ” Los Angeles case more than a year ago, and having already briefed a ﬁrst
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round of demurrers which were granted by this Court in March, Plaintiff and counsel created the
“exigency” which they now claim by failing to timely ﬁle the Petition for Coordination (“Petition”)

and seek a stay in the normal course. Second, Plaintiff’s purported fear of inconsistent rulings is
10 unfounded and belied by his counsel’s actions in this case, the Los Angeles case, and yet another

11 case pending in Hawaii state court that counsel fails to mention in the Application. Third, none of
12 the factors necessary for coordination are present such that coordination is unlikely in any event—

13 the only parties in common as between the two cases are counsel for Plaintiff and Defendant Four

14 Seasons Hotels Limited (“Four Seasons”). One other class action in Hawaii would remain separate.

15 Plaintiff s counsel knew of all three cases when they ﬁled them over a year ago, and chose to keep
16 them separate. As such, the Application should be denied.

17 Plaintiff ﬁled this putative class action over a year ago—on July 14, 2017—after he stayed

18 at the Four Seasons Hotel Silicon Valley at East Palo Alto in 2017, alleging that Four Seasons

19 violated the Fair and Accurate Credit Transactions Act of 2003, 15 U.S.C. § 168lc(g) (“FACTA”)
20 when it issued a receipt to him which contained more than the last ﬁve digits of his credit card

21 number and the expiration date of his credit card. Plaintiff seeks to hold liable not only Four

22 Seasons—the manager and operator—but also the hotel’s passive owner and lessor, Defendants

23 SHR Palo Alto, LLC (“SHR”) and DTRS Palo Alto, LLC (“DTRS”) (collectively, the “SHR

24 Defendants”), respectively. The SHR Defendants are not defendants in either of the two other

25 FACTA class actions pending against defendant Four Seasons, which class actions were brought

26 by different plaintiffs and included other third party owners of the hotels at issue.
27

151260.00201/110942877v.2 2
MEMORANDUM OF POINTS AND AUTHORITIES BY DEFENDANT S SHR PALO ALTO, LLC AND DTRS
PAI.O AI.TO I .I.(‘. IN OPPOSITION TO PI ,AINTIFF PATRICK WI—IITF’R FY PARTF.‘ APPI .ICATION
As mentioned, this Court already sustained the SHR Defendants’ demurrer to Plaintiff’s

First Amended Complaint (“FAC”) on the ground that Plaintiff improperly lumped the SHR
(a) Defendants with Four Seasons without delineating what action each defendant took that allegedly

violated FACTA and without establishing the SHR Defendants’ “direct involvement in or ‘hands-

on’ control over the statutorily prohibited acts” as mere owners of the hotel. As a result, the Court

also noted that willfulness was not alleged as against the SHR Defendants. Fearing that the SHR
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Defendants’ demurrer and the Four Seasons demurrer to his Second Amended Complaint (“SAC”)

(which relies heavily on the defendants’ management agreement to impose liability on the SHR

Defendants), will doom his case, Plaintiff now seeks a lifeline vis—d-vz's an emergency stay and a

10 belated petition for coordination of this matter with another FACTA matter against a completely

11 separate hotel—Four Seasons Westlake Village—and its completely separate owner—Westlake

12 Wellbeing Properties, LLC, with a completely different plaintiff.

13 Because the grounds for ex parte relief are not present, and the “risk” of inconsistent rulings
14 supporting a stay is exaggerated and will not be alleviated in any event given the Hawaii case as

15 well as the judge’s actions in the Los Angeles case, the Application should be denied.

16 11. RELEVANT BACKGROUND.
17 A. The Instant White Matter.

18 1. Procedural History Through the First Demurrer.
19 Plaintiff commenced this class action on July 14, 2017 in the Superior Court of the State of
20 California for the County of San Mateo, and it was removed by Four Seasons to the United States

21 District Court for the Northern District of California on August 22, 2017. Plaintiff ﬁled his First

22 Amended Complaint (“F AC”) on September 28, 2017, bringing a single count for “willful” violation
23 of FACTA by Four Seasons, SHR, and Strategic Hotels & Resorts LLC (“Strategic Hotels”), a

24 defendant no longer named in the action.1

26
1
Plaintiff originally named Four Seasons and erroneously named Strategic Hotels. SHR was later
27 named as a DOE 1. Pursuant to a February 7, 2018 Stipulation and Order, Plaintiff replaced the
erroneously named Strategic Hotels with SHR. After ﬁling the SAC, Plaintiff identified DTRS as
28 DOE 2, which Amendment the court ordered on June 14, 2018.
151260.00201/110942877v.2 3
MEMORANDUM OF POINTS AND AUTHORITIES BY DEFENDANT S SHR PALO ALTO, LLC AND DTRS
PAI.O AT TO I .I .O IN OPPOSITION TO PI ,AINTI‘FF PATRICK WHITF’R FY PARTF.‘ APPI ,IOATION
The case was remanded by Plaintiff to this Court on November 8, 2017, whereupon the SHR

Defendants ﬁled their demurrers, arguing that the PAC “at best supports an inference of passive
ownership; it does not plausibly suggest that [SHR or Strategic Hotels] operates, manages, or

4:.
controls the operation of the hotel.” (SHR Demurrer to FAC (Jan. 9, 2018), p. 2.) This Court agreed

with SHR and Strategic Hotels, speciﬁcally making two key ﬁndings in granting the Demurrer to the

PAC. First, the Court held that “the pleading fails to set forth with the requisite speciﬁcity the
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factual basis for establishing . . . [SHR or Strategic Hotels’] direct involvement in or ‘hands-on’

control over the statutorily prohibited acts at the point-of—sale.” (May 24, 2018 Order on SHR

Demurrer (“SHR Order”), p. 2.) In support of this, the Court speciﬁcally noted that the Hotel

1o Management Agreement lodged with the Court “gives Defendant Four Seasons Hotels Limited the

11 exclusive operational control of collection of all hotel charges from guests and the giving of receipts
12 for such charges collected from the guests.” (Id.) Second, the Court agreed with SHR and Strategic

13 Hotels’ arguments regarding willfulness, ﬁnding that “the essential element of willfulness necessary

14 for any recovery” are “not sufﬁciently pled here as against the SHR defendants.” (SHR Order, p. 2.)

15 2. Plaintiff’s SAC and the SHR Defendants’ Demurrer.
16 After the Court sustained the demurrers of all defendants named in the FAC, Plaintiff filed
17 his SAC on June 13, 2018. With the Management Agreement in hand, Plaintiff alleges that “Four

18 Seasons manages the Hotel, controlling and overseeing the day-to-day operations of the Hotel

19 including but not limited to implementing, maintains [sic], and managing its point of sale credit and

20 debit card transaction systems, including the one which was responsible for issuing Plaintiff and

21 members of the class (as defined herein) credit and debit receipts which failed to comply” with
22 FACTA. (SAC, 11 5.) Plaintiff goes on: “Four Seasons was required by its agreement with SHR and

23 DTRS to manage the Hotel and in doing so to comply with all applicable laws.” (Id. 11 7.) In

24 addition, Plaintiff describes the alleged unlawful act as follows: “The front desk employee generated

25 and handed to Plaintiff a printed receipt for his stay at the Hotel which set forth 10 or more digits of
26 his Visa credit card number and the expiration date (both the month and year) of his Visa credit
27 card.” (Id. 11 14.) Plaintiff then asserts that “Four Seasons, through its employee” committed the act,
28

151260.00201/110942877v.2 4
MEMORANDUM OF POINTS AND AUTHORITIES BY DEFENDANT S SHR PALO ALTO, LLC AND DTRS
PAT .0 AT .T() T .T .(‘. TN OPPOSTTTON TO PT .ATNTTFF‘ PATRTCK WT—TTTF.’S FY PA RTE APPT .TC ATTON
1’

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but that they did so “as the agent” of SHR and DTRS. (Id. 11 16.) Of course, Plaintiff fails to plead

any facts to support his implicit contention that a mere agency theory can impute willfulness onto the

SHR Defendants absent any other action or inaction on the party of the SHR Defendants.

The SHR Defendants’ pending demurrer argues that: (l) the SAC fails to set forth with the

requisite speciﬁcity the factual basis for establishing the SHR Defendants’ direct involvement in or

“hands-on” control over the wrongful acts at the point of sale, as required by the Court; and (2) the

SAC does not allege sufﬁcient facts to support a plausible conclusion that any action is attributable

to the SHR Defendants upon which willfulness can be demonstrated. (SHR Demurrer to SAC (Jul.

18, 2018).) On the same day, Four Seasons demurred to the SAC on the ground that Plaintiff does
10 not allege sufﬁcient facts to support a conclusion that Four Seasons acted willfully. (Four Seasons

11 Demurrer to SAC (Jul. 18, 2018).)

12 Three weeks ago on July 12, 2018, the parties appeared for a case management conference.

13 (Declaration of Harrison Brown (“Brown Decl.”), ﬂ 2, Ex. 1.) As reﬂected in the minutes of the

14 conference, Plaintiff’s counsel represented that “[a] request for JCCP consolidation will be
15 made.” (Id. (emphasis added).) Both the SHR Defendants and Four Seasons ﬁled and served their

16 demurrers on July 18, 2018 and noticed the hearings for August 21, 2018—providing Plaintiff an

17 additional 12 days beyond the 16 court day notice required by Code of Civil Procedure section
18 1005(b). Plaintiffs oppositions to the demurrers are due on August 8, 2018.

19 B. The Edelstein Matter.

20 On July 28, 2017, two weeks after the instant case was ﬁled, Scott Edelstein and Steven

21 Brooks—who are represented by the same attorneys as Plaintiff—commenced a class action in the

22 Superior Court of Los Angeles, alleging similar causes of action against Westlake Wellbeing
23 Properties, LLC (“Westlake”), the owner of a Four Seasons hotel in Westlake Village, California
24 (“Four Seasons Westlake Village”), and Four Seasons (hereinafter, the “Edelstein Matter”).

25 (Declaration of Miriam Schimmel to Plaintiff’s Petition, 11 17, Ex. B.) Mr. Edelstein and Mr.
26 Brooks allege that Four Seasons willfully violated FACTA by printing receipts containing more

27 than the last ﬁve digits of the plaintiffs’ credit card numbers and the expiration dates of the

151260.00201/1 10942877v.2 5
MEMORANDUM OF POINTS AND AUTHORITIES BY DEFENDANT S SHR PALO ALTO, LLC AND DTRS
PAI 0 AI .TO I .I C IN OPPOSITION 'T‘O PI .AINTIPP PATRICK WI—IITF.’S FY PA RTF,‘ APPI IO ATION
plaintiffs’ credit cards after the plaintiffs completed their stay at the Four Seasons Westlake Village,

and that Four Seasons acted at the direction of its principal, Westlake. (Id., 1] 17, Ex. B, at w 16-

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17.) Mr. Edelstein and Mr. Brooks do not mention the SHR Defendants in their pleadings, much

less attribute to the SHR Defendants any actions with respect to the generation of receipts at the

Four Seasons Westlake Village—nor could they, as the hotel is owned by an entity with which the

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SHR Defendants have no relationship. (Id.)

The Edelstein Matter was removed to federal court by Four Seasons on September 1, 2017,

and remanded to the Los Angeles Superior Court on November 15, 2017. (Id., ﬂ 4, Ex. 2.)

According to Plaintiffs counsel, the Complex Court judge assigned to the Edelstein Matter initially

10 stayed the action to wait for the ruling by this Court on Four Season’s Demurrer, likely to avoid

11 inconsistent rulings, and in any event set a brieﬁng schedule for demurrers to the Edelstein

12 plaintiffs’ second amended complaint despite “recornmend[ing] that the Parties ﬁle a Petition for

13 Coordination with the Judicial Council.” (Id., 1111
13-14.)

14 C. The Brooks Matter.

15 On June 26, 2017, two weeks prior to the ﬁling of this action, Mr. Brooks—again

16 represented by the same counsel—ﬁled a lawsuit in the Circuit Court of the Third Circuit for the

17 State of Hawaii alleging that after he used his credit card to pay for his stay at the Four Seasons

18 Resort Hualalai in 2017, a hotel owned by Hualalai Investors, LLC, Four Seasons generated and

19 provided him a receipt that contained more than the last ﬁve digits of his credit card account

20 number and the expiration date of his credit card, in violation of FACTA. Brooks v. Hualalai

21 Inv’rs, LLC, No. 17—00364, 2017 WL 8233902, at *1 (D. Haw. Oct. 30, 2017). As in the Edelstein
22 Matter, Four Seasons removed the case to federal court, whereupon Mr. Brooks sought to remand

23 the case for lack of Article III standing. Id. The magistrate recommended that the court grant Mr.

24 Brooks’ motion, and the district judge ordered the case remanded to Hawaii state court. Id. at *6;

25 see also Brooks, 2018 WL 1385784, at *1 (D. Haw. Mar. 19, 2018) (adopting report and

26 recommendation). As in the Edelstein Matter, Mr. Brooks does not mention the SHR Defendants in

27 his complaint, and does not attribute to the SHR Defendants any conduct with respect to the

151260.00201/110942877v.2 6
MEMORANDUM OF POINTS AND AUTHORITIES BY DEFENDANTS SHR PALO ALTO, LLC AND DTRS
P Ar 0 AT .TO I I C IN OPPOSITION TO PT ,AINTIFP PATRICK WHITF.’R FY PA RTF.‘ APPT JO ATTON
generation of receipts at the Four Seasons Resort Hualalai (a hotel owned by an entity with which

the SHR Defendants have no relationship). See 2017 WL 8233902.

D. The Coordination Petition and the Ex Parte Application.

On August 1, 2018, Plaintiff s counsel ﬁled a Petition to coordinate the Edelstez‘n Matter

with the instant case on the purported ground that “the questions of law in both cases are identical

and the material issues of fact are common to both actions; coordination will avoid duplicative or
inconsistent rulings, the convenience of the parties, witnesses and counsel will be better served by
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coordination; and settlement will be encouraged.” (Declaration of Miriam Schimmel to Plaintiff’ 5
Ex Parte Application (“Schimmel Decl.”), 11 3, Ex. A, at 11 7.)

10 Plaintiff immediately follows the Petition with the instant Application. Plaintiff erroneously
11 contends that “Defendants in both cases are demurring to identical operative complaints based on

12 the contention that Plaintiffs have failed to sufﬁciently plead ‘willfulness.”’ (Memorandum in

13 Support of Application, p. 1.) Plaintiff contends that “there is a signiﬁcant risk of inconsistent

14 rulings between the two cases”—i.e., if this Court were to sustain the SHR Defendants’ demurrer

15 only to have the Los Angeles Superior Court overrule a demurrer in the Edelstein Matter. (Id.)

16
III. PLAINTIFF CANNOT DEMONSTRATE THAT STAYING PROCEEDINGS OR
17
CONTINUING THE DEMURRER HEARING IS WARRANTED, MUCH LESS ON
AN EXPEDITED BASIS.
18
A. Plaintiff Cannot Demonstrate an Emergency Justifying Ex Parte Relief Because
19 He Unreasonably Delayed Bringing The Petition and This Application.

20 Rule of Court 3.1201(c) requires that an ex parte application be accompanied by “an

21 afﬁrmative factual showing of irreparable harm, immediate danger, or any other statutory basis
22 for granting relief ex parte.” (emphasis added). Plaintiff cannot possibly make this showing

23 because Plaintiff has unreasonably delayed bringing the Petition and this Application.
24 In this case, Plaintiff’s counsel was aware of the supposed common issues justifying

25 coordination as early as July 28, 2017, and no later than the ﬁrst Demurrer ﬁling and hearing of the

26 SHR Defendants and Four Seasons.

151260.00201/110942877v.2 7
MEMORANDUM OF POINTS AND AUTHORITIES BY DEFENDANT S SHR PALO ALTO, LLC AND DTRS
PAI .O AI TO I .I C IN OPPOSITION TO PI .AINTIFF‘ PATRICK WI—IITF‘.’R FY PART‘F.‘ APPI IO ATION
First, just two weeks after commencing this case on July 14, 2017, Plaintiff ﬁled the

Edelstein Matter on July 28, 2017, naming Four Seasons as a defendant and alleging FACTA

violations with respect to its practices of generating receipts for credit card transactions. While the

SHR Defendants dispute that the cases “[a]rise from the same or substantially identical transactions,

incidents, or events requiring the determination of the same or substantially identical questions of

law or fac ” as required by Rule of Court 3.300(a)(2), the purported common causes ‘of action

asserted by Plaintiff were present in each pleading. Instead of promptly seeking to coordinate this
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action with the Edelstein Matter, Plaintiff waited more than a year to ﬁle a Petition to coordinate

on August 1, 2018.

10 Second, the ﬁrst round of demurrers in this case were ﬁled on January 9, 2018, and Judge

11 Jones of the Los Angeles Superior Court stayed the Edelstein Matter soon thereafter pending a

12 ruling on the demurrers. Thus, Plaintiff’s counsel knew then that rulings in both cases would be

13 coming down in the near future, yet did nothing.

14 Third, according to Plaintiff’s counsel, at the June 29, 2018 case management conference,

15 Judge Jones of the Los Angeles Superior Court “strongly suggested that the Parties ﬁle a petition

16 for coordination.” (Memorandum in Support of Plaintiff s Ex Parte Application, p. 2.) Plaintiff’s
17 counsel waited 33 days to ﬁle the Petition to coordinate. Had Plaintiff’s counsel timely brought the

18 Petition, it could have been heard on regular notice as early as July 24, 2018, more than two weeks

19 before the date on which Plaintiff’s oppositions to the demurrers are due.

20 Fourth, at the July 12, 2018 case management conference in this action, Plaintiff’s counsel

21 represented that “[a] request for J CCP consolidation will be made.” (Brown Decl., 1T 2, Ex. 1.) Once

22 again, Plaintiff’s counsel waited another 20 days to ﬁle the Petition.

23 “Where the Rules permit an ex parte application or communication to the Court in an

24 emergency situation, a lawyer should make such an application or communication (including an

25 application to shorten an otherwise applicable time period) only where there is a bona ﬁde

26 emergency such that the lawyer’s client will be seriously prejudiced by a failure to make the

27 application or communication on regular notice. Weil & Brown, Civil Procedure Before Trial

151260. 00201/1 10942877v. 2 8
MEMORANDUM OF POINTS AND AUTHORITIES BY DEFENDANT S SHR PALO ALTO, LLC AND DTRS
PAT ,0 AT T0 T .T P TN OPPORTTTON TO PT .ATN‘T‘TFF PATRTC‘K WT—TTTF.’ 9 FY PARTF‘ APPT .T(‘ ATTON
’g
(June 2018 update), § 9:346.1 (emphasis added); see also, e.g., Mission Power Eng Co. v. Cont ’l

Cos. Co., 883 F. Supp. 488, 493 (CD. Cal. 1995) (holding that for purposes of an ex parte motion, a

moving party most show that it is without fault or is guilty only of excusable neglect, and that such a

showing “requires more than a showing that the other party is the sole wrongdoer. It is the creation

of the crisis—the necessity for bypassing regular motion procedures—that requires explanation”).
Despite having ample time in which to bring a motion to stay proceedings on regular notice,

Plaintiff allowed the SHR Defendants to go to the trouble and expense of brieﬁng not one, but two

demurrers. Now, having seen the second demurrer and deciding that he would rather try his luck

with the coordination judge rather than this Court, Plaintiff makes vapid allegations of exigency and
1'0 irreparable harm. Plaintiff’s “emergency” is self-created, avoidable, and an overt attempt to forum

11 shop. The Court should, respectﬁllly, deny the Application and direct Plaintiff to respond to the

12 demurrer in the normal course. Indeed, Plaintiff also requests a stay in connection with his Petition,

13 and there is no reason why the coordination motion judge should not decide whether a stay is proper.

14
B. Plaintiff’s Claims of Irreparable Harm Due to the Possibility of Inconsistent
Rulings is Undercut by Plaintiff’s and Counsel’s Delay and the Pendency of the
15
Brooks Matter.
16
In his Application, Plaintiff contends the Edelstein Matter and this case “involve the same
17
claims, same discovery, and same overlapping classes,” and that “Defendants in both cases are
18
demurring to the identical operative complaints based on the contention that Plaintiffs have failed to
19
sufﬁciently plead ‘willfulness. 9” (Memorandum in Support of Plaintiffs Application, p. 1.)
2o
Plaintiff argues that coordination is necessary because “there is a signiﬁcant risk of inconsistent
21
rulings between the two cases,” and cites the possibility that if the Court sustains the SHR
’22
Defendants’ demurrer, “the coordination judge [would then have] to determine what effect to give
23
the ruling.” (Id., pp. 1-2.) Not so.
24
The hotels at issue in each of the two cases sought to be coordinated (and of course the hotel
25
in Hawaii), are different, with different owners, different operative management agreements,
26
different allocation of responsibilities as between the owners and the operator, Four Seasons, and by
27
virtue of such, different theories of liability, including as to imputation of willfulness under a federal
28

151260.00201/110942877v.2 9
MEMORANDUM OF POINTS AND AUTHORITIES BY DEFENDANTS SHR PALO ALTO, LLC AND DTRS
PAT 0 A1 .110 r r .n m nppnsmnN Tn pr ,ATNTIFF PATRICK WHITR’R FY :04 RTF.‘ APPI Jo. ATTON
statute. Indeed, the Court’s ruling on the demurrers in this case, and the SAC, rely heavily on the

allocation of responsibility and actions as between the Four Seasons and the SHR Defendants. A
ruling on the SHR Defendants’ demurrer would not necessarily be inconsistent with a ruling on Four

Seasons demurrer, or any demurrer in the Edelstein Matter. The SHR Defendants demurred to

Plaintiffs SAC on the grounds that the SAC fails to set forth the factual basis for the SHR

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Defendants’ direct involvement in or “hands-on” control over the wrongful acts at the point of sale at

the Four Seasons Palo Alto. (SHR Demurrer to SAC.) If the Court were to sustain the demurrer on
this ground, then the contention that the SHR Defendants acted “willfully” through Four Seasons

would be moot. Further, Plaintiff fails to articulate how the SHR Defendants can be held vicariously

10 liable for purported violations at the Four Seasons hotel in Westlake Village, California, which is

11 owned by a different entity with which the SHR Defendants have no relationship.

12 Moreover, Plaintiff’s supposed fear of inconsistent rulings is belied by his counsel’s actions.

13 First, the risk of inconsistent rulings has existed since Plaintiff’s counsel ﬁled the Edelstein Matter

14 on July 28, 2017. At no point in the last year did Plaintiff s counsel take any action to avoid
15 inconsistent rulings. For example, Plaintiff s counsel could have ﬁled their coordination Petition

16 when the SHR Defendants brought the ﬁrst demurrer, but did not do so. This delay demonstrates

17 that the Petition, and the instant Application, are nothing more than tactical moves designed to

18 manipulate jurisdiction.

19 Second, conspicuously absent from Plaintiff’s Application and the Petition is any mention of
20 the Brooks Matter, in which one of the same plaintiffs to the Edelstein Matter asserts FACTA

21 violations stemming from a receipt at the Four Seasons Resort Hualalai. Thus, even if Plaintiffs
22 Petition is granted, the risk of inconsistent rulings would not be addressed; for example, the

23 coordination judge could ﬁnd that Plaintiff does not state a claim for willful violations of F ACTA by
24 Four Seasons, while the Hawaii court could permit the case to proceed against Four Seasons. If
25 Plaintiff’s counsel were truly concerned with the risk of consistent rulings, they should have sought

26 to consolidate the cases While they were all pending in federal court.2

27
2
28
Plaintiff has cited an exigent hypothetical “risk” of inconsistent rulings as to the pleading
standard in California state court, or at most as to the deﬁnition of willfulness under FACTA. The
151260.00201/110942877v.2 10
MEMORANDUM OF POINTS AND AUTHORITIES BY DEFENDANTS SHR PALO ALTO, LLC AND DTRS
PAT .0 A1 .TO 1 I ,O m OPPOSITION TO pr .ATNTTFP PATRICK wmrrpzs my PA 1m: APPI If‘. ATION
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C. Coordination is Inappropriate, and Plaintiff’s Requested Stay Amounts to an
Unnecessary Delay in the Instant Proceeding.

Even if Plaintiff had not delayed in bringing his Petition, coordination of this case with the
Edelstein Matter is inappropriate and the Petition will ultimately fail. Coordination is only

appropriate if it “will promote the ends of justice.” Code Civ. Proc. § 404.1. Section 404.1 sets
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forth seven factors to be analyzed in determining whether this standard is met and whether two

actions should be coordinated: (1) whether the common question of fact or law is predominating
and signiﬁcant to the litigation; (2) the convenience of parties, witnesses, and counsel; (3) the

\O relative development of the actions and the work product of counsel; (4) the efﬁcient utilization of
10 judicial facilities and manpower; (5) the calendar of the courts; (6) the disadvantages of duplicative

11 and inconsistent rulings, orders, or judgments; and (7) the likelihood of settlement of the actions

12 without further litigation should coordination be denied. Each of these factors cuts against a ﬁnding

13 that coordination is proper, and coordination will only hinder the ends of justice.
14 F_irs_t, common questions of fact or law do not predominate between the Edelstein Matter

15 and the instant case; in fact, dispositive questions of law or fact between the two cases are

16 inherently unique to the respective parties. Four Seasons has a separate and distinct relationship,

17 role, and agreements with the hotels’ respective owners. The SHR Defendants, as owner and lessor

18 of the Four Seasons Palo Alto, have nothing to do with the Four Seasons Westlake Village or its
19 separate owner, Westlake. Plaintiff does not contend that the SHR Defendants had any
20 involvement in the printing of the allegedly unlawful receipt in the Edelstein Matter or in the

21 management,‘operation, or control of the Four Seasons Westlake Village’s point of sale
3
22 system, transactions, or employees. Further, Plaintiff does not contend that FourSeasons

23 operated or managed the hotels in a similar fashion, including at the point of sale and with
24 customers unique to those hotels. Plaintiff even admits—by way of his SAC—that there are

25
former is unpersuasive given that the factual underpinnings in each case are necessarily different,
26 and the latter is unpersuasive because Four Seasons has not joined in the coordination, and because
Judge Jones is mindful of the demurrer rulings in this case.
27 3
As set forth in the SHR Defendants’ currently pending demurrer, Plaintiff did~ not allege facts
supporting any direct involvement in, or hands-on control over, the printing or provision of receipts
28
by the SHR Defendants even with respect to the Four Seasons Palo Alto.
151260.00201/110942877v.2 11
MEMORANDUM OF POINTS AND AUTHORITIES BY DEFENDANTS SHR PALO ALTO, LLC AND DTRS
PAT ,0 AT (T0 T .T (T TN ()PPOSTTTON T0 PT ATN'T‘TFF P ATRTC‘K WT—‘TTTF’S FY PA RTFI APPT TC ATTON'
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different agreements between the hotels and their respective owners and/or lessors relating to the

operation, management, and control of the hotels, their employees, and their point of sale systems.
Where the hands—on actions, relationships, agreements, and point-of-sale practices differ
4:.
between the various defendants (and likely as between the named plaintiffs) in the two actions, the

application of law is irreconcilably different, since the imposition of FACTA liability hinges on

2008) (assessing vicarious liability under FACTA); Safeco Ins. Co. ofAm. v. Burr, 551 US. 47, 57-
58 (2007) (assessing intentional acts of merchant at the point of sale to determine willfulness).
Sec—0nd, coordination is used primarily in the context of mass-tort litigation when multiple

10 plaintiffs ﬁle individual actions and there are common issues predominating in the litigation and,

11 therefore, overlapping witnesses, discovery, evidence, and parties. See Keenan v. Superior Court,

12 111 Cal.App.3d 336 (1980) (airplane-crash litigation); McGhan Medical Group v. Superior Court,

13 11 Cal.App.4th 804 (1992) (breast—implant litigation). By contrast, the only common party here is

14 Four Seasons. The hotels at which the alleged transactions took place are separately owned and are

15 located in different cities, hundreds of miles apart. Although the classes alleged in the two cases

16 may overlap, the named plaintiffs do not. As discussed at length above, common issues of either

17 law or fact do not predominate in this litigation, especially as to the owners/lessors of the hotels.

18 T_hi_r(_i, as to the instant case, Plaintiffs Petition and Application come just one week before

19 his oppositions to Defendants’ demurrers are due—despite the fact that Plaintiff has intended to

20 coordinate this case with the Edelstein Matter for some time. Plaintiff’s request for a stay or
21 continuation is merely procedural gamesmanship and an unjustiﬁed attempt to bog down a

22 case which is on the brink of potential resolution. If Defendants’ demurrers are sustained,
23 there would be no basis for coordination, but Plaintiff instead puts the cart before the horse in

24 arguing that coordination should be considered, and the case made more costly and complex,
25 before a potential imminent dismissal. Further, discovery in this case has already been

26 undertaken. This case is thus more developed than the Edelstein Matter,4 and the pending demurrer

27
4
As to the Edelstein Matter, Plaintiffs just ﬁled their Second Amended Complaint on July 20, 2018.
28 Unlike the instant case, no demurrers have been briefed.
151260.00201/110942877v.2 12
MEMORANDUM OF POINTS AND AUTHORITIES BY DEFENDANT S SHR PALO ALTO, LLC AND DTRS
PAIO AI.TO I ,I .f‘. IN OPPOSITION TO PLAINTIFF PATRICK WHITF’R FY PARTF.‘ APPI .ICATION
should be considered individually in light of its speciﬁc litigation history, including the Court’s

orders on Defendants’ prior demurrers.

m, there are also inefﬁciencies which would plague the Court if coordination were
permitted. As discussed, Defendants now have demurrers pending which may free the judicial

system of this case in its entirety. Further, the inclusion of additional parties, attorneys, and

witnesses will make it far more difﬁcult to coordinate and administer either case. There will
undoubtedly be delays while issues unique to only one party are addressed—indeed, the

inefﬁciencies are glaring with respect to the simultaneously pending Hawaii action, which Plaintiff

cannot seek to have coordinated, but which will undoubtedly be cited to in this matter.
10 th, coordination is to be further designed to “reduce the risk of inconsistent rulings.”
11 Code. Civ. Proc. § 404.1. As discussed above, however, not only is this risk unfounded, but

12 Plaintiff’s counsel has already waived this risk by waiting more than one year to bring the Petition

13 and by continuing with the Brooks Matter in a different forum.
14 Finally, settlement remains equally as likely—if not more likely—should coordination be
15 denied. Coordination will only complicate settlement; instead of attempting settlement with four

16 parties in one case, the plaintiffs will have to try to coordinate with ﬁve other parties in one case for

17 whom there are a multitude of uncommon questions of fact and law. As a result, parties would be

18 deterred from settling where their unique defenses might be reduced to a common resolution or

19 muddled by the factual differences and varying standards.

20 IV. CONCLUSION.
21 For the foregoing reasons, the Court should deny Plaintiff’s Application.

151260.00201/110942877v.2 13
MEMORANDUM OF POINTS AND AUTHORITIES BY DEFENDANTS SHR PALO ALTO, LLC AND DTRS
PAI,O AI.TO I ,I (1 TN OPPOSITION TO PI .ATNTIFF‘ PATRICK WHITFN FY PARTF? APPI ICATION
DATED: August 1, 2018 BLANK_ ROME LLP

éL;%m
Ana Tagvoryan
Harrison Brown
Erika Schulz
OO\]O\UIJ>

Attomevs for Defendants.
SHR PALO ALTO. LLC and DTRS PALO ALTO. LLC

151260.00201/110942877v.2 14
MEMORANDUM OF POINTS AND AUTHORITIES BY DEFENDANT S SHR PALO ALTO, LLC AND DTRS
PAT 0 AT .TO T .T (3 TN OPPORTTTON T0 PT .ATNTTFF P ATRTC‘K WT—TTTP.’R FY PA RTE APPT ,TC‘. ATTON
DECLARATION OF HARRISON BROWN

1, Harrison Brown, do declare as follows:

1. I am a member of the Bar of the State of California and am an associate of the ﬁrm
A Blank Rome LLP, counsel for Defendants SHR Palo Alto, LLC (“SHR”) and DTRS Palo Alto, LLC

(“DTRS”) (collectively, the “SHR Defendants”). I am one of the attorneys at Blank Rome LLP

responsible for handling this case on behalf of the SHR Defendants. I make this declaration in
\DOO\IO\UI

opposition to Plaintiff Patrick White’s (“Plaintiff”) Ex Parte Application “an order from the court

either staying this matter entirely, or in the alternative, continuing Defendants SHR Palo Alto, LLC

and DTRS Palo Alto, LLC’s demurrer to a date that is after the Judicial Council of California makes

1o a determination on Plaintiff’s Petition for Coordination of this matter with the Edelstein case” (the

11 “Application”). 1 make this Declaration of my personal knowledge or my review of the litigation
12 ﬁles kept in the ordinary course of business, and could and would testify competently hereto.

13 2. On July 12, 2018, the parties appeared for a case management conference in the

14 instant action. A true and correct copy of the minutes of the conference are attached hereto as

15 Exhibit 1.
16 3. On July 12, 2018, I met and conferred by telephone with Miriam Schimmel, counsel
17 for Plaintiff. During the call, Ms. Schimmel indicated to me that Plaintiff planned to ﬁle a petition

18 to coordinate the instant action with Edelstein et al. v. Westlake Wellbeing Properties, LLC, et al.,

19 No. BC669646 (L.A. Sup. Ct.) (the “Edelstein Matter”).

20 4. Upon information, the Edelstein Matter was removed to federal court on September 1,

21 2017, and remanded on November 15, 2017. Mr. Edelstein and Mr. Brooks moved to remand the

22 case. A true and correct copy of the motion to remand is attached hereto as Exhibit 2. On

23 information, the district court entered an order remanding the case to Los Angeles Superior Court on

24 November 15, 2017.

151260.00201/110942877v.2 15
DECLARATION OF HARRISON BROWN IN OPPOSITION TO PLAINTIFF PATRICK WHITE’S
FY PA RTF.‘ APPI .TC‘. ATION Tn RT AV PR OCF‘FDINGS OR CONTINI IF. nFMI TRRFR
I declare under penalty of perjury that the foregoing is true and correct.
Executed this lst day of August, 2018, at Los Angeles, California.

4:.

\IQUI

‘l’lHarnson Brown
.

151260.00201/110942877v.2 16
DECLARATION OF HARRISON BROWN IN OPPOSITION TO PLAINTIFF PATRICK WHITE’S
FY 1021 RTF. APPLICATION TO STAY PR nappnmas OR CONTINT m DFMITRRF‘R
I —
Case Number: 17-CIV-03178

SUPERIOR COURT OF SAN MATEO COUNTY
400 County Center ‘,

1050 Mission Road
'

Redwood City, CA 94063 South San Francisco, CA 94080
www.5anmateocourt.org

.
Minute Order
PATRICK WHITE vs. SHR PALO ALTO, LLC, et al 17-CIV-03‘178
07/12/2018 9:00 AM
Case Management Conference 1

Hearing Result: Held

Judicial Ofﬁcer: Grandsaert John L. Location: Courtroom 2D
Courtroom Clerk: Jordan Maxwell

Case Info

Judge

V. Raymond Swope Track Judge’s New Case

Case No.

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Document Filed Date

August 02, 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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