Opinion
BC 361975
Hearing Date July 3, 2008 Filed August 5, 2008
Appeal from the Superior Court of Los Angeles County.
BRYAN CAVE LLP, Jonathan Solish, California Bar No. 67609, Glenn J. Plattner, California Bar No. 137454, Attorneys for defendants.
Jonathan Solish (SBN 67609), Glenn J. Platter (SBN 137454), Attorneys for Defendants.
Samuel G. Jackson, Esq., Jackson Associates, Attorneys for Jill Exposito and Elizabeth Henderson.
David H. Raizman, Esq., Eisenberg Raizman Thurston Wong LLP, Attorneys for H. W. Heritage Inn of Rancho Cucamonga, Inc.
[PROPOSED] ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that defendants Hilton Hotels Corporation, Promus Hotel Corporation (now Promus Hotels Parent LLC), Promus Hotels, Inc. (now Promus Hotels LLC), Embassy Suites Hotels, Homewood Suites By Hilton, Stephen Bollenbach, Philip Cordell, Madeleine Kleiner, Ted Raynor and John Dent (collectively "Defendants") Motion for Summary Judgment, or in the Alternative, for Summary Adjudication against plaintiffs Jill Exposito and Elizabeth Henderson (the "Motion for Summary Judgment") came on for hearing in Department 51 the above-referenced Court, the Honorable Jerome K. Fields presiding, on July 3, 2008. Jonathan Solish and Glenn Plattner of Bryan Cave LLP appeared on behalf of the Defendants and Samuel Jackson of Jackson and Associates appeared on behalf of plaintiffs Jill Exposito and Elizabeth Henderson.
Having read and considered the Motion for Summary Judgment, all papers submitted by the parties in support or opposition, and having heard and considered the oral argument of all parties, the Court finds that there are no triable issues of material fact, and that Defendants are entitled to judgment as a matter of law, on the entire Complaint by plaintiffs Jill Exposito and Elizabeth Henderson as against the Defendants, for the reasons set forth in the Defendants' Motion for Summary Judgment and during oral argument, and makes the following additional findings:
The court concludes there are no triable issues of material fact as to whether (a) there were violations of the Acts by the moving defendants, (b) the moving defendants owned, possessed or controlled the hotels at issue, with the exception of Hilton Hotels Corporation, which managed one of the properties through a wholly owned subsidiary, (c) the moving defendants intentionally inflicted emotional distress on the plaintiffs, (d) the moving defendants negligently hired, trained or supervised any person who caused injury to the plaintiffs, and (e) the plaintiffs suffered injury in fact and lost money or property sufficient to support a claim for unlawful practices. Code of Civil Procedure § 437c.
A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Code of Civil Procedure § 437c(c). The moving party bears a burden of production to make a prima facie showing of the nonexistence of any genuine issue of material fact. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 845. If he carries his burden of production, he causes a shift: the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a genuine issue of material fact. Id. The opposing party need not prove his or her case; it is enough to show that a triable issue of material fact exists. McManis v. San Diego Postal Credit Union (1998) 61 Cal.App.4th 547, 554. The evidence and affidavits of the moving party are construed strictly, while those of the opponent are liberally read. Kulesa v. Castleberry (1996) 47 Cal.App.4th 103, 112.
1. ISSUE NO. 1 : First Cause of Action for Conspiracy.
Plaintiffs' first cause of action for conspiracy is asserted against Hilton, Hilton's former CEO and Co-Chairman, General Counsel, a brand Senior Vice-President and two senior staff attorneys and subsidiaries, and officers.
Conspiracy requires (1) defendants' agreement to the objective and course of action to injure; (2) wrongful act pursuant to such agreement; and (3) resulting damage. Berg Berg Ent., LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 823.
Corporate Officers: Agents and employees of a corporation cannot conspire with their corporate principal or employer where they act in their official capacities on behalf of the corporation and not as individuals for their own advantage. Black v. Bank of America N. T. S.A. (1994) 30 Cal.App.4th 1,4; Everest Investors 8 v. Whitehall Real Estate Ltd. Partnership XL (2002) 100 Cal.App.4th 1102, 1109 — "an agent or employee who is acting within the scope of his authority is (in the eyes of the law) one and the same `person' as the corporation.") Defendants submit evidence that any actions that the individually named defendants had taken with regard to the Hilton family of hotels were taken in their official capacities for Hilton. (Defendants' Separate Statement of Undisputed Material Facts ("DSSUMF") ¶ 14.) Defendants have met their burden. The burden now shifts to Plaintiffs. Plaintiffs fail to raise a triable issue of fact. Accordingly, adjudication of this issue is GRANTED. Attorneys: Code of Civil Procedure § 1714.10 expressly prohibits asserting civil conspiracy claims against attorneys because of their conduct in representing their clients without first obtaining leave of court. Defendants submit evidence that during 2006, at the time of the incidents alleged in the complaint, Madeleine Kleiner, Ted Raynor and John Dent, were employed by Hilton Hotel Corporation as in house attorneys for Hilton. (DSSUMF ¶ 10.) Plaintiffs did not obtain leave of court to bring a conspiracy claim against the attorney defendants. Defendants have met their burden. The burden now shifts to Plaintiffs. Plaintiffs fail to raise a triable issue of fact. Accordingly, adjudication of this issue is GRANTED.
2. ISSUE NO. 2 : Second Cause of Action for Violation of the Unruh Act.
The Unruh Civil Rights Act ("Unruh Act") expressly guarantees to "[a]ll persons within the jurisdiction" of California, "no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation" the "full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." Civil Code § 51(b).) The Unruh Act imposes liability upon whoever denies, aids or incites a denial, or makes any discrimination contrary to Section 51, 51.5 or 51.6 (Civil Code § 52); and anyone who denies or interferes with admittance to or enjoyment of the public facilities, or anyone who interferes with the rights of an individual with a disability (Civil Code § 54.3).
Liability of Individual Defendants: Defendants submit evidence that Stephen Bollenbach and Philip Cordell (corporate executives), Madeleine Kleiner, Ted Raynor and John Dent (corporate lawyers) and Promus Hotel Corporation (company with a name similar to the franchisor of Homewood Suites franchise) did not act in any way that prevented Plaintiff's dog Uriah from acting as a guide dog to Plaintiff, nor did they do anything to incite a denial of civil rights. (DSSUMF ¶¶ 11-12, 17.) Defendants have met their burden. The burden now shifts to Plaintiffs.
Plaintiffs argue that there is circumstantial evidence of company wide discrimination, and contend that when Hilton's executives learn specific hotels have discriminated, they authorize, encourage and ratify the practice of turning away disabled persons with service dogs. (Plaintiffs' Opposition to Defendants' Motion for Summary Judgment ("Opposition"), 7:16-19, citing to Brandt Stites Decl. ¶ 25.) However, Brandt Stites Decl. ¶ 25, does not state anything about such practice. In addition, Brandt Stites' speculation, based on "informal discovery" that Hilton's executive knew of the discrimination and they concealed and destroyed complaints, is insufficient to raise a triable issue of fact as to liabilities of individual defendants. (Opposition 7:26-8:3; Brandt Stites Decl. ¶¶ 21-24, Exhibits 9-11.)
In addition, while Plaintiffs argue that their complaint is filled with detailed allegations of Hilton's concealment and destruction of evidence (Opposition 9:6-10), their burden is to produce evidence to support a prima facie showing of the existence of a genuine issue of material fact; and their allegations in the complaint are insufficient to meet such burden. See College Hasp., Inc. v. Sup.Ct. (Crowell) (1994) 8 Cal.4th 704, 720 (neither party can rely on its own pleadings (even if verified) as evidence to support or oppose a motion for summary judgment or summary adjudication.) Plaintiffs fail to raise a triable issue of fact. Accordingly, adjudication of this issue is GRANTED. Palm Desert Embassy Incident: Defendants submit evidence that Palm Desert Embassy Suites' computer indicated that the hotel was full, and that any guest would have been turned away for that reason. (DSSUMF ¶ 5.) Defendants met their burden. The burden now shifts to Plaintiffs. Plaintiffs "dispute" this evidence, and argue that discrepancies with the systems were responsible for the front desk computer showing the hotel was sold out even though there were rooms available. (Plaintiffs' Responses to DSSUMF ¶ 5.) Either way, the evidence is clear that the reason Plaintiffs were turned away was not because of the service dog; but instead, because the hotel was full or because the discrepancies with the system showed that the hotel was full. Plaintiffs have failed to raise a triable issue of material fact. Accordingly, adjudication of this issue is GRANTED. Rancho Cucamonga Incident: Defendants submit evidence that the franchisor for this property was Promus Hotels, Inc., which is a subsidiary of Hilton Hotels Corporation. (DSSUMF ¶¶ 6 and 8.) Defendants also submit evidence that there was no agency relationship between Promus Hotels, Inc. and the Rancho Cucamonga hotel, because it did not own or operate the Rancho Cucamonga Homewood Suites (DSSUMF ¶ 9); or have day-to-day control over the Rancho Cucamonga location (DSSUMF ¶ 27). Defendants have met their burden. The burden now shifts to Plaintiffs.
Plaintiffs submit the declaration of their counsel, Sam Jackson, who attests that as a Franchisor, Promus Hotels, Inc. exercised substantial control over its franchisee, thereby converting an independent contractor relationship into an agency relationship (Opposition, Jackson Decl. ¶ 6); and that despite the language in the Franchise License Agreements, Promus Hotels, Inc. could and did control its franchisees ( Id. at ¶ 19). However, Mr. Jackson does not have personal knowledge of the relationship and practices of Promus Hotels, Inc. and the Rancho Cucamonga franchisee, and thus, cannot attest to such facts. Opposing party's burden of production is not satisfied by declarations containing inadmissible evidence (hearsay or conclusions). Overland Plumbing, Inc. v. Transamerica Ins. Co. (1981) 119 Cal.App.3d 476, 483. Plaintiffs have failed to meet their burden. Accordingly, adjudication of this issue is GRANTED.
3. ISSUE NO. 3 : Third Cause of Action for Violation of the Disabled Persons Act. GRANTED for the same reasons set forth in Issue No. 2.
4. ISSUE NO. 4: Fourth Cause of Action for Intentional Inflictionof Emotional Distress.
GRANTED for the same reasons set forth in Issue No. 2.
In addition, summary adjudication of this issue is GRANTED because there was no outrageous conduct on the part of the Defendants. The elements of a cause of action for IIED are (1) outrageous conduct by defendant; (2) intentional or reckless causing emotional distress; (3) severe emotional distress; and (4) causation. Nally v. Grace Community Church (1988) 47 Cal.3d 278, 300; Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883 ("court may determine in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.")
The fact that (1) the Rancho Cucamonga property asked Plaintiffs to pay a $75.00 deposit because of their signal dog, and (2) Embassy hotel's front clerk told Plaintiffs that there were no rooms available because of the discrepancies with the computer system, is not outrageous. (DSSUMF ¶¶ 3, 4-5.)
5. ISSUE NO. 5 : Fifth Cause of Action for Negligent Hiring.
The elements of a cause of action for negligent hiring are (1) employer's hiring an employee; (2) who is incompetent or unfit; (3) employer had reason to believe undue risk of harm would exist because of the employment; and (4) the harm occurs. Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1213-14.
Defendants submit evidence that the only employment relationship between a defendant and a desk clerk dealing with Exposito was Hilton Hotels Corporation's relationship with Mayra Silva in Palm Desert (DSSUMF ¶¶ 15, 32, 34-35); and that none of the other defendants interviewed, hired or supervised either of the desk clerks who had direct dealings with the plaintiffs (DSSUMF ¶¶ 15, 32, 35). Defendants have met their burden. The burden now shifts to Plaintiffs.
Again, Plaintiffs submit the declaration of their counsel attesting that Defendants undoubtedly influenced and had input as to what appears to be the Brand Standards Manual which formed in part the basis for training (Plaintiffs' Responses to DSSUMF ¶ 15), however, his speculation and inadmissible testimony is insufficient to meet their burden.
In addition, deposition testimony of Mayra Silva is also insufficient to meet this burden. Ms. Silva testified that she received training from Hilton for the system only, and that the written material did not deal with service dogs. (Exhibit 8, Deposition of Silva.) However, there are no triable issues of fact as to whether the moving defendants interviewed, hired or supervised either of the desk clerks who had direct dealings with the plaintiffs. Accordingly, adjudication of this issue is GRANTED.
6. ISSUE NO. 6 : Sixth Cause of Action for Unlawful Business Practices.
Unfair business practices are (1) business practice; (2) that is unfair, unlawful or fraudulent; and (3) authorized remedy. Bus. Prof. Code § 17200. Standing to sue for violations of Bus. Prof. Code § 17200 et seq. (after adoption of Proposition 64 in November 2004) is limited to specified public officials and persons who have sustained "injury in fact and lost money or property as a result of such unfair competition." (Bus. Prof. Code § 17204.)
Defendants submit evidence that neither of the Plaintiffs paid money or lost any property, and thus, Plaintiffs are not "individuals who suffered losses of money or property that are eligible for restitution," and have no standing to assert a claim for injunctive relief. (DSSUMF ¶ 36.) Defendants have met their burden; the burden now shifts to Plaintiffs. Again, Plaintiffs refer to the allegations contained in their complaint to show they suffered injury. However, Plaintiffs cannot rely on their own pleadings as evidence to support or oppose a motion for summary judgment or summary adjudication. College Hasp., Inc. v. Sup. Ct. (Crowell) (1994) 8 Cal.4th 704, 720. Plaintiffs fail to raise a triable issue of fact. Accordingly, adjudication of this issue is GRANTED.
7. ISSUE NO. 7 : The individually named defendants Stephen Bollenbach, Phillip Cordell, Madeleine Kleiner, Ted Raynor and John Dent are entitled to adjudication in their favor of the entire Complaint.
Adjudication of this issue is GRANTED for the same reasons set forth in Issue Nos. 1-6.
8. ISSUE NO. 8 : The plaintiffs may not rely upon the alleged incident at the Homewood Suites hotel in Rancho Cucamonga, California for any causes of action against the moving defendants, because none of the moving defendants owned, operated or controlled that hotel, but rather it was a franchised hotel owned, operated and controlled by H.W. Heritage a franchisee of Promus Hotels, Inc.
Adjudication of this issue is GRANTED for the same reasons set forth in Issue Nos. 1-6.
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT:
THEREFORE IT IS ORDERED THAT:
Defendants' Motion for Summary Judgment is GRANTED. Moving defendants are entitled to summary judgment because the undisputed facts demonstrate that (a) there were no violations of the Acts by the moving defendants, (b) with the exception of Hilton Hotels Corporation, which managed one of the properties through a wholly owned subsidiary, the moving defendants did not own, possess or control the hotels at issue, (c) none of the moving defendants intentionally inflicted emotional distress on the plaintiffs, (d) the moving defendants did not negligently hire, train or supervise any person who caused injury to the plaintiffs, and (e) the plaintiffs suffered no injury in fact and did not lose money or property sufficient to support a claim for unlawful practices. Judgment in favor of Hilton Hotels Corporation, Promus Hotel Corporation (now Promus Hotels Parent LLC), Promus Hotels, Inc. (now Promus Hotels LLC), Embassy Suites Hotels, Homewood Suites By Hilton, Stephen Bollenbach, Philip Cordell, Madeleine Kleiner, Ted Raynor and John Dent and against Jill Exposito and Elizabeth Henderson shall be entered accordingly.
DEFENDANTS' EVIDENTIARY OBJECTIONS :
Defendants' evidentiary objections are SUSTAINED. Declarations from Aaron and Brandt Stites are irrelevant for purpose of this motion (Objection Nos. 1-39). The declaration of Plaintiffs' counsel Mr. Jackson lacks foundation, personal knowledge, and is an improper opinion testimony (Objection Nos. 40 — 60); and the Exhibits objected to are irrelevant (Objection Nos. 61-82.)
DEFENDANTS' REQUEST FOR JUDICIAL NOTICE :
The Court declines to take judicial notice of Exhibits 1 and 2 to Defendants' Request for Judicial Notice. They are irrelevant for the purposes of this motion.
PROOF OF SERVICE
I, the undersigned, say: I am employed in the County of Los Angeles, State of California. I am over the age of 18 years and am not a party to the within action. My business address is 120 Broadway, Suite 300, Los Angeles, CA 90401.On July 15, 2008, I served the following document(s) described as [PROPOSED] ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT on the interested parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows:
(BY MAIL) I placed a true copy of the foregoing document in a sealed envelope addressed to each interested party as set forth above. I placed each such envelope, with postage thereon fully prepaid, for collection and mailing at Bryan Cave LLP, Santa Monica, California. I am readily familiar with Bryan Cave LLP's practice for collection and processing of correspondence for mailing with the United States Postal Service. Under that practice, the correspondence would be deposited in the United States Postal Service on that same day in the ordinary course of business.
(BY FED EX) I deposited in a box or other facility maintained by the overnight delivery service, an express carrier service, or delivered to a courier or driver authorized by said express carrier service to receive documents, a true copy of the foregoing document, in an envelope designated by said express service carrier, with delivery fees paid or provided.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed on July 15, 2008, at Santa Monica, California.