2014-00164635-CL-CR

Jonathan Asselin-Normand vs. Amaya Enterprises, Inc.

Nature of Proceeding: Motion to Dismiss

Filed By: Zarka, David R.

Amaya Enterprises, Inc.’s (“Amaya”) Motion to Dismiss pursuant to CCP 391.3(b) or alternatively to order Plaintiff to Furnish Security pursuant to CCP 391.1 is denied as to the motion to dismiss but granted as to the motion to furnish security under CCP 391.1.

Amaya’s Motion to Require out of State plaintiff, who is a resident of Canada, to post Security under CCP 1030 is denied.

Amaya’s Request for Judicial Notice is denied is granted.

The Court notes that on January 20, 2019 a request for a fee waiver was filed. No fee waiver has yet been granted.

Plaintiff seeks monetary, declaratory, and injunctive relief arising out of alleged violations of the Unruh Civil Rights Act (“Act”) whereby defendant innkeeper would not allow plaintiff to rent a room because he was a minor. Plaintiff alleges that on or about March 29, 2014, he was traveling alone when he attempted to check in at the front desk of Defendants’ hotel, a Travelodge on Micron Ave., but was denied lodging because at the time he was not at least 18 years of age. He alleges that he was an emancipated minor. He does not, however, allege that the employee of the Travelodge was made aware that Asselin-Normand was, in fact, an emancipated minor.(Complaint ¶16)

This action was filed June 9, 2014 when plaintiff was represented by counsel Calvin Chang. An Association of Counsel was filed on behalf of G. Eric Lambdin on December 20, 2014. On May 20, 2016, Substitutions of Counsel were filed by both counsel, rendering plaintiff self-represented.

The trial date is March 18, 2019. The settlement conference was set for February 5, 2019. The filing of this motion automatically stays proceedings in this case pending the hearing. CCP 391.6.

The Unruh Act provides that all persons within the jurisdiction of this state are free and equal, and no matter their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. Civ. Code § 51(b) “Age” is not a classification listed in the Unruh Act as originally enacted, and was not
included as a classification when the statute was amended effective January 1, 2016. However, as noted in ruling on the motion for judgment on the pleadings in this case, there are judicially recognized classifications: “These judicially recognized classifications include unconventional dress or physical appearance, families with children, homosexuality, and persons under 18.” (Hessians Motorcycle Club v. J.G. Flanagans (2001) 86 Cal.App.4th 833, 836, citing O’Connor v. Village Green Owners Assn. (1983) 33 Cal. 3d 790, 794.” (June 23, 2017 minute order, Dept. 53)

Judge Christopher E. Krueger, in Department 54 of this Court, found that plaintiff was a vexatious litigant in another case. He ruled that Plaintiff’s claim that the Unruh Act was violated when hotel operators denied lodging to someone who is under 18 years of age has been rejected in five or more litigations within an immediately preceding seven-year period. Consequently, in ruling on a motion by HV-Houston Development, Inc. (“HV-HD”) in an action entitled Jonathan Asselin-Normand v. Crossland Sacramento et al., [Sacramento County Superior Court case no. 34-2018-00228188], Judge Krueger, on November 2, 2018, declared Plaintiff to be a vexatious litigant under C.C.P. §391(b)(l) so as to require him to furnish security of at least $25,000 as a condition of him maintaining his cause of action. When that security was not furnished, the case was dismissed pursuant to CCP 391.4. Parenthetically, there is but one superior court in the county of Sacramento. Although such court is divided into a number of departments to expedite the business of the court, the proceedings had are to be governed by the same rules as if the two actions were in a court with but a single judge. (See, e.g. Brown v. Campbell (1895) 110 Cal. 644; Garris v. Mitchell (1935) 7 Cal. App. 2d 430.)

Judge Krueger found that: (1) Plaintiff in propria persona maintained at least nine separate civil actions in the preceding four years, along with the appeal of at least five of these civil actions; (2) that each of these civil actions named one or more defendants which was identified as an inn, lodge, hotel, or other similar establishment;

(3) that all such actions and appeals were resolved adversely to Plaintiff; (4) and that to the extent the rulings in the earlier actions provided details regarding the nature of Plaintiff s claims, all indicated Plaintiff was asserting claims similar (if not identical) to those in the above-mentioned case. Judge Krueger found in that case that there was no reasonable probability of prevailing in the litigation since, as was explained in several of the earlier rulings on Plaintiffs claims under the Act, there was no authority demonstrating that the Act prohibits discrimination against minors who are not accompanied by an adult. (See Minute Order Department 54, October 25, 2018, Case No. 34-2018-00228188.)

Judge Krueger stated that “as explained in several of the earlier rulings on plaintiff’s claims under the Act, there is no authority which demonstrates that the Act prohibits discrimination against minors who are not accompanied by an adult. Moreover, the express provisions of Civil Code §1865(d), permit an innkeeper to require a minor seeking accommodations to be accompanied by a responsible
adult who assumes full liability for any and all obligations incurred by the minor. Judge Krueger therefore found that plaintiff had no “reasonable probability” of prevailing in the litigation. (See Order of Hon. Christopher Krueger dated November 2, 2018 described in Defs RQ for Jud. Not (RJN).)

The vexatious litigant statute provides that “[i]n any litigation pending in any court of this state, at any time until final judgment is entered, a defendant may move the court, upon notice and hearing, for an order requiring the plaintiff to furnish security or for an order dismissing the litigation pursuant to subdivision (b) of Section 391.3. The motion for an order requiring the plaintiff to furnish security shall be based upon the ground, and supported by a showing, that the plaintiff is a vexatious litigant and that there is not a reasonable probability that he or she will prevail in the litigation against the moving defendant.” CCP 391.1.

Pursuant to CCP 391(b)(4), plaintiff is a vexatious litigant, as found by the Hon.

Christopher Krueger on November 2, 2018 in Case No. 34-2018-00228188.

CCP 391.3(a) provides: “(a) Except as provided in subdivision (b), if, after hearing the evidence upon the motion, the court determines that the plaintiff is a vexatious litigant and that there is no reasonable probability that the plaintiff will prevail in the litigation against the moving defendant, the court shall order the plaintiff to furnish, for the benefit of the moving defendant, security in such amount and within such time as the court shall fix.

CCP 391.3(b) provides: “If, after hearing evidence on the motion, the court determines that the litigation has no merit and has been filed for the purposes of harassment or delay, the court shall order the litigation dismissed. This subdivision shall only apply to litigation filed in a court of this state by a vexatious litigant subject to a prefiling order pursuant to Section 391.7 who was represented by counsel at the time the litigation was filed and who became in propria persona after the withdrawal of his or her attorney.

(c) A defendant may make a motion for relief in the alternative under either subdivision

(a) or (b) and shall combine all grounds for relief in one motion. CCP 391.3

Movant Amaya contends the evidence meets both the test under 391.3(a) of “no reasonable probability of prevailing,” requiring a posting of security, as well as the test under 391.3(b) “no merit and filed for the purposes of harassment of delay,” requiring dismissal of the action.

The Court finds that Plaintiff has no reasonable probability of prevailing in the instant litigation. It is stipulated that at the time he attempted to check in at Defendant’s hotel,

Plaintiff stated he was not accompanied by an adult, and presented his Canadian passport to show that he was 17 years of age. Plaintiff has also stipulated that “The Agent did not ask Plaintiff whether he was emancipated or could provide a written assumption of liability from an adult and that “[a]t no time did Plaintiff disclose to the Agent, or otherwise claim, that Plaintiff could have been emancipated; and Plaintiff did not present any documentation to that effect to demonstrate whether he was emancipated. Plaintiff likewise did not present any written assumption of liability from an adult. (See the Joint Stipulation of Facts, described in Defs RQ for Jud. Not., Item 90 in the Register of Actions)

At the outset, Asselin-Normand submits no case authority supporting the idea that hotels are obligated to rent to minors alone as a matter of course. As noted, above, section 1865, subdivision (d)(1) states: “Where a minor unaccompanied by an adult seeks accommodations, the innkeeper may require a parent or guardian of the minor, or another responsible adult, to assume, in writing, full liability for any and all proper charges and other obligations incurred by the minor for accommodations . . ., as well as for any and all injuries or damages caused by the minor to any person or property.” Under section 1865, subdivision (d)(1), defendant had a statutory right to compel adult guarantees before even considering accommodating Asselin-Normand. Plaintiff has demonstrated no fact pleaded to be exempt from this statutory precondition. Additionally, this statutory precondition for minors is a legislative defense for concluding no “age” discrimination under Unruh.

Saliently, discovery obtained in this case indicates that two days prior to his presentation at Defendant’s hotel, Plaintiff was targeting other local lodging establishments under his theory of age discrimination, presenting himself as a “17-year -old” to no less than six other Sacramento hotels (namely, the Governor’s Inn, at 210 Richards Boulevard; the Hawthorn Suites at 321 Bercut Drive; the La Quinta Inn at 200 Jibboom Street; the Comfort Suites at 226 Jibboom Street; the Motel 6 at 227 Jibboom Street; and the Days Inn at 228 Jibboom Street). (See Plaintiff’s Responses to Special Interrogatories, Nos. 7 & 8 attached as Exh. A to Zarka Decl.) Of these, he secured lodging at the Days Inn on March 27, 2014 (Id.), only to attempt to make, by telephone on the following day, a reservation at Defendant AMAYA’s Sacramento hotel in preparation for appearing in person at AMAYA’s establishment on March 29,2014. (See ¶¶ 15 & 16 of the Complaint)

Amaya contends that the above facts show that plaintiff filed this action only to harass the defendant and extort a settlement. However, the above facts alone do not establish that this action was filed only to harass the defendant. The Court in this matter previously denied defendant’s motion for judgment on the pleadings, finding that a cause of action was potentially stated under the Unruh Act. The Court noted that Fam. Code, § 7050 provides: (e) An emancipated minor shall be considered as being an adult for the following purposes: The minor’s capacity to do any of the following: … (2) Enter into a binding contract or give a delegation of power. … (4) Sue or be sued in the minor’s own name. Defendant conceded in the Reply to the JOP that the allegation that plaintiff was an emancipated minor must be accepted as true for the purposes of a Judgment on the Pleadings. The Court found that because Family Code, sec. 7050(e)

(2) authorizes an emancipated minor to enter into such a contract, plaintiff has alleged sufficient facts to state a cause of action”:(See Minute Order Department 53, 6-23-17)

In any event it appears that this case differs somewhat from the other cases relied on by the defendant in that this case alleges that plaintiff was emancipated. Nonetheless, this Court finds that the Complaint in this case alleges substantially similar facts as the case in which he was found to be vexatious, and the Court may find that it is not reasonably probable that plaintiff will prevail in this case absent evidence that at the time of the appearance at the Travelodge, plaintiff affirmatively presented proof of a valid emancipation decree to the Innkeeper. Plaintiff cannot make such proof because he stipulated that “Plaintiff did not present any documentation to that effect to demonstrate whether he was emancipated. Plaintiff likewise did not present any written assumption of liability from an adult. ” Therefore as a matter of law, the Court finds that Amaya is likely to prevail in this action and that plaintiff has no reasonable probability of prevailing on his claim for violation of the Unruh Act. Given that plaintiff was under 18 at the time of the incident the Court finds that the Innkeeper had no duty to inquire whether plaintiff was emancipated, but rather the burden was on plaintiff to affirmatively provide proof of emancipation in order to make a potential claim for unlawful age discrimination under the Unruh Act. Therefore, as in the other similar cases that lead to the finding that plaintiff was a vexatious litigant, Civil Code section 1865(d)(2) applies in this case and the defendant, under the facts presented herein, was not required to provide a minor a room unless the minor is accompanied by a responsible adult, or affirmatively showed emancipation. Therefore, it is not reasonably probable that plaintiff will prevail in this case.

Amount of Security

Since Plaintiff has been litigating this case in propria persona, Amaya contends it has incurred attorney’s fees and costs in an amount of $17,419.43 associated with its defense of Plaintiffs claims, and $6,550.00 with the preparation and filing of the instant motion. (See Zarka Decl.) Given that the time estimated by Defendant for the jury trial in this action is 3 – 4 days (see Defs CMC Statement filed on February 21, 2018, described in Defs RQ for Jud Not.), trial preparation and presentation involves estimated future fees and costs for Amaya in the amount of $20,800.00, (Zarka Decl.) Consequently, Amaya contends the undertaking should be ordered in the amount of $44,769.43 which includes $6,435. for this motion alone ($325 x 16 hours).

In its estimation, the Court does not believe this will be a 3-4 day jury trial given the evidence proffered in this motion, including the stipulation of the parties. Therefore the Court will limit the security to be furnished to $25,000. Plaintiff has provided no authority that a vexatious litigant need not furnish security if they obtain a fee waiver, as to which plaintiff has produced no evidence.

In opposition, plaintiff contends a fee waiver will be sought, and CCMS does reflect that a fee waiver request was filed on February 20, 2019. However, even if the waiver is granted [and it has not been], the obtaining of a fee waiver has no effect on the security requirement in the vexatious litigant statutes. McColm v Westwood Park Association (1998) 62 Cal.App.4th 1211, 1218-1219. In Devereaux v. Latham & Watkins (1995) 32 Cal. App. 4th 1571, the court sustained a $ 25,000 security required of a litigant proceeding in forma pauperis: “As to appellant’s claim that she is unable to post the security, we need only refer to the vexatious litigant statutes which nowhere require the trial court to take into consideration the plaintiff’s means in determining the amount of security to be required. (§ 391 et seq.) ….The issue was raised in the legislative record but is not reflected in the statutes as enacted. This suggests that the Legislature did not intend for the court to concern itself with this consideration.” Id. at 1587-1588.

CCP 1030

Since plaintiff lives out of state, in Canada, defendant moves for an order requiring plaintiff to file an undertaking for costs incurred in this action. CCP 1030 provides in part:

“(a) When the plaintiff in an action or special proceeding resides out of the state, or is a foreign corporation, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney’s fees which may be awarded in the action or special proceeding. For the purposes of this section, “attorney’s fees” means reasonable attorney’s fees a party may be authorized to recover by a statute apart from this section or by contract.

“(b) The motion shall be made on the grounds that the plaintiff resides out of the state or is a foreign corporation and that there is a reasonable possibility that the moving defendant will obtain judgment in the action or special proceeding. The motion shall be accompanied by an affidavit in support of the grounds for the motion and by a memorandum of points and authorities. The affidavit shall set forth the nature and amount of the costs and attorney’s fees the defendant has incurred and expects to incur by the conclusion of the action or special proceeding.

A “reasonable possibility” is a “maybe,” a mere “fair argument” for the defense. (See Nat’I Resources Defense Council v. CA Fish & Game Comm ‘n (1994) 28 Cal.App.4th 1104, 1119-20.) Pursuant to the “fair argument test” in Natural Resources, credible evidence which controverts Plaintiff’s claims is enough to show that a trier of fact may believe one witness over another. (See id. at 1116.)

Section 1030 was enacted based upon the recognition of a successful defendant’s difficulty, if not impossibility, of enforcing a judgment against a plaintiff who resides outside the jurisdiction of a California court. (See Shannon v. Sims Service Center (1985) 164 Cal.App.3d 907, 913.

Defendants seek $44,769.43 in fees and costs, as sought in the motion to require security. The award may only secure costs and fees that could be awarded pursuant to statute or contract. Defendant has not established that they are entitled to attorneys fees if they were the prevailing party under the Unruh Act. Fees may be included in the bond only if they “may be awarded in the action.” See 1030(a). Thus, the Court denies the request for security in the amount of $44,769.43 because defendant has not pointed to any statute or contract that allows a prevailing party in an Unruh Act case to obtain attorneys fees. Civil Code section provides an attorney fee award to a prevailing plaintiff against whoever denies rights under the Unruh Act. Defendant has not cited to authority that attorneys fees may be awarded to a prevailing defendant.

PLAINTIFF IS ORDERED TO POST SECURITY in the amount of $25,000 on or before March 21, 2019. If plaintiff fails to furnish this security by that date defendant may seek dismissal pursuant to CCP 391.4.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.