Filed 2/28/18 Boice v. Harcourt Group, LLC CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE


ERIC BOICE et al.,
Petitioners and Appellants,
v.
HARCOURT GROUP, LLC et al.,
Defendants and Respondents.

A146918

(City & County of San Francisco
Super. Ct. No. CGC14539994)


Plaintiffs Eric and Vinetta Boice and Yowie Stromberg sued the owners and managers of the Harcourt Hotel for unlawfully preventing them from acquiring rights accorded to long-term tenants by making them check out before they stayed at the hotel for 30 days. The trial court denied plaintiffs’ motion for class certification, ruling that individual issues related to class membership and damages predominated over common issues. The court’s ruling is legally and factually sound, so we affirm.
BACKGROUND
The Harcourt Hotel is a 92-unit residential hotel owned by Harcourt Group, LLC and managed by Sojourn Properties, Inc. (jointly, defendants or the Hotel). Plaintiffs allege the Hotel has a policy of requiring certain guests to move out before they stay 30 continuous days, most commonly on the 28th day, to prevent them from acquiring the status and rights of long-term tenants. They allege this practice violates a statutory proscription against “requir[ing] an occupant of a residential hotel . . . to move or to check out and reregister, before the expiration of 30 days occupancy if a purpose is to have that occupant maintain transient occupancy status” (Civ. Code, § 1940.1 ) and a parallel municipal provision that prohibits landlords from evicting occupants before 32 continuous days of tenancy in order to avoid application of the San Francisco Rent Ordinance (the Rent Ordinance). (S.F. Admin. Code, sec. 37.2(r)(1) [“the term ‘rental units’ shall not include: (1) Housing accommodations in hotels . . . provided that at such time as an accommodation has been occupied by a tenant for thirty-two (32) continuous days or more, such accommodation shall become a rental unit subject to the provisions of this chapter; provided further, no landlord shall bring an action to recover possession of such unit in order to avoid having the unit come within the provisions of this chapter”].)
Plaintiffs asserted their allegations were supported by guest registration cards with the notation “must c/o,” meaning “must check out,” associated with 170 occupants who stayed at the hotel for less than 30 continuous days, 110 of whom left after exactly 28 days, and by the Hotel’s admission that it allowed such individuals to reregister at the hotel after a short time. According to the declaration of named plaintiff Vinetta Boice, she moved in and out of the Hotel eight times within less than a year. On each occasion she was told to leave, returned a week later, and stayed another three or four weeks. A declaration from potential class member Jennifer Hawkins stated that she moved in and out of the Hotel five times, four times when the management forced her to move after 28 days and once after one day because there were bedbugs in her room. Named plaintiff Eric Boice, who shared Hawkins’ room at the Hotel but was never a registered guest, similarly attested that he “moved in and out of the Hotel five times, one time it was only one day because my room was infested with bedbugs and roaches so I asked for a new room.” All three attested that they had to fill out new applications and reregister when they returned to the Hotel. Plaintiffs argued that “[w]hile the Defendants may deny that the purpose was to have the occupant maintain transient occupancy status, there is a rebuttable presumption that this was in fact their purpose because Defendants allowed the occupants to reregister after that occupant was required to leave. Also, where the vast majority of Proposed Class members were all forced to check out after exactly 28 days, Defendants cannot deny its purpose was to prevent those occupants from accruing tenants’ rights.”
Plaintiffs’ moving papers in support of class certification defined the proposed class as “[a]ll occupants of the Harcourt Hotel who were required to move out or check out and reregister before 30 consecutive days of occupancy since December 1, 2008.” They estimated a class size of at least 200 based on the 170 occupants for whom they had identified registration cards with the “must c/o” notation, out of the approximately 3,000 such cards dating from 2010 provided in discovery. The complaint sought actual damages that resulted from moving as well as statutory damages under the Civil Code and the Rent Ordinance, but at the class certification hearing plaintiffs abandoned the actual damages claim for all class members except the named plaintiffs.
In opposition to class certification, defendants explained that occupants generally stay at the Hotel anywhere from one week to several years. The Hotel normally rents rooms on a weekly basis. If guests wish to stay more than four weeks and become long-term tenants under the Rent Ordinance the Hotel requires them to submit a rental application so it can assess their credit, employment status and history of past evictions. The Hotel considers these factors in deciding whether to accept short-term occupants as long-term tenants; a previous eviction or unemployment are usual reasons for an applicant’s rejection. At the time of this litigation, 75 of the Hotel’s 86 rooms had been occupied by the same tenant for several months and 60 had been occupied by the same tenant for over a year.
Of the 170 registration cards marked “must c/o” that plaintiffs argued demonstrated a hotel policy of limiting occupancies to less than 30 days to prevent guests from becoming long-term tenants, at least 60 relate to individuals who did not stay exactly 28 days. Almost all of those stayed for 21 days or less, and one stayed only one night. Of the 110 guests who left after exactly 28 days, 36 were barred by the three-year statute of limitations, 39 had filled out rental applications of which 27 were disqualified for previous evictions, financial or employment problems, and seven became long-term tenants. Of approximately 75 registration cards for individuals who stayed for other than 28 days, 18 moved out more than three years before suit was filed and only 12 submitted rental applications. Of those 12, nine applications showed disqualifying criteria such as previous evictions or poor credit or employment problems.
The court denied the motion for class certification. It ruled that “individual issues predominate as to the actual damages for each potential class member and the reasons why each potential class member vacated either one day after moving in or twenty eight days later. An individual action would be better than a class action given these proof issues and an individual has incentive to bring his/her own claim given the ability to recover statutory and actual damages.” The court further found that two of the name plaintiffs were not proper class representatives and that the class was overbroad because it dated back to December 1, 2008, past the three-year statute of limitations.
Plaintiffs filed this timely appeal.
DISCUSSION
I. Legal Principles
Code of Civil Procedure section 382 authorizes class actions “when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court.” “In order to maintain a class action, a plaintiff must establish that two prerequisites have been met: ‘the existence of an ascertainable class and a well-defined community of interest among the class members. [Citation.] The community of interest requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class.’ [Citation.]” (Block v. Major League Baseball (1998) 65 Cal.App.4th 538, 542 (Block).)
“Although class actions are favored, one ‘will not be permitted . . . where there are diverse factual issues to be resolved, even though there may be many common questions of law.’ [Citation.] ‘[T]he community of interest requirement is not satisfied if every member of the alleged class would be required to litigate numerous and substantial questions determining [the member’s] individual right to recover following the “class judgment” determining issues common to the purported class’ [Citation.]
“The standard of review that we must apply on appeal is also settled. The trial court is vested with broad discretion to determine whether a class should be certified. ‘Our task on appeal is not to determine in the first instance whether the requested class is appropriate but rather whether the trial court has abused its discretion in denying certification.’ [Citation.] We ‘will not disturb a trial court ruling on class certification which is supported by substantial evidence unless (1) improper criteria were used [citation]; or (2) erroneous legal assumptions were made [citation].’ ” (Block, supra, 65 Cal.App.4th at pp. 542–543; Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435–436.)
II. Analysis
Substantial evidence supports the court’s refusal to certify the class. Plaintiffs’ proposed class of guests whom the Hotel forced to leave to prevent them from accruing the rights of long-term tenants was premised on the 170 guest registration cards marked “must c/o” and the former occupants’ declarations that the Hotel forced them to move out on or before the 28th day of occupancy and later permitted them to reregister. We assume for purposes of our discussion that this invoked section 1940.1’s rebuttable presumption that the Hotel’s purpose with respect to these three individuals was to prevent their occupancies from ripening into long-term tenancies. (§ 1940.1, subd. (a); see § 1940, subd. (a)(1); Rev. & Tax. Code § 7280.) But that begins, not ends, the analysis.
As described above, the Hotel responded to plaintiffs’ showing with a factual analysis of its registration records. Those records evidenced a variety of reasons why Hotel guests identified as potential class members left the Hotel after staying fewer than 30 days. Because some guests had multiple rent cards, the 110 registration cards plaintiffs adduced showing stays of exactly 28 days represented only 97 individual guests. Only 38 of those individuals submitted the rental application required for long-term tenancy, and, of those 38, 20 showed disqualifying factors such as prior evictions and missing or inadequate employment and financial information. At least six of the remaining 18 guests actually became long-term tenants. As to the guests who did not submit rental applications, the Hotel’s attorney attested “it is unknown why they did not submit Tenant Applications but what is clear is that if someone did submit such an application, there was a valid reason why they either became long term tenants or why they did not become long term tenants.” The approximately 60 remaining cards marked “must c/o” were related to guests who stayed for anywhere between 7 and 33 days, most typically for periods of one, two or three weeks. No evidence was adduced as to why those guests checked out.
This was an ample basis for the court’s determination that individual issues of proof as to the reason each potential class member left the Hotel predominated over common questions of fact or law. As defendants argued below, “[e]ach individual potential class member [had] a completely different set of facts upon which to base whether or not defendants could have conceivably violated Civil Code Section 1940.1.” Each potential class member’s ability to make that showing would require the court to analyze, with respect to each guest, whether they had submitted a rental application; whether, if so, their application revealed disqualifying factors; whether they were evicted or, to the contrary, moved out for other reasons.
In sum, the record demonstrated that the potential class members would be required to individually prove liability, i.e., that the Hotel forced each of them to move within less than 30 days to prevent them from becoming long-term tenants. Each member, unless the court approved counsel’s last-ditch bid to abandon their individual claims for actual damages, would also have to prove their damages. Accordingly, the community of interest requirement was not satisfied. As the court properly denied the motion for class certification on that basis, we need not address its additional findings that the class was overbroad and two named plaintiffs were not proper class representatives.
DISPOSITION
The order denying class certification is affirmed.
 
_________________________
Siggins, J.


We concur:


_________________________
McGuiness, Acting P.J. *


_________________________
Jenkins, J.

















Boice v. Harcourt Group, LLC, A146918