Hall v. Marriott International, Inc.

Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 TODD HALL, KEVIN BRANCA, Case No.: 3:19-cv-01715-JLS-AHG individually and on behalf of all others 13 ORDER RESOLVING JOINT similarly situated, et al., MOTION FOR DETERMINATION 14 Plaintiffs, OF DISCOVERY DISPUTE AND 15 DENYING DEFENDANT’S MOTION v. TO COMPEL 16 MARRIOTT INTERNATIONAL, INC., 17 [ECF No. 101] Defendant. 18

19 Before the Court is Plaintiff Kevin Branca (“Plaintiff”) and Defendant Marriott 20 International, Inc.’s (“Defendant”) Joint Motion for Determination of Discovery Dispute. 21 ECF No. 101. Defendant seeks an order from the Court compelling Plaintiff to produce 22 documents relating to various ticket purchases, to which Plaintiff objects. Id. For the 23 reasons set forth below, Defendant’s motion to compel is DENIED. 24 I. FACTUAL BACKGROUND 25 On September 9, 2019, Plaintiff Todd Hall filed this putative class action alleging 26 unjust enrichment and violations of California’s Consumers Legal Remedies Act 27 (“CLRA”), Cal. Civ. Code §§ 1750 et seq.; False Advertising Law (“FAL”), Cal. Bus. & 28 1 Prof. Code §§ 17500 et seq.; and Unfair Competition Law (“UCL”), Cal. Bus. & Prof. 2 Code §§ 17200 et seq.1 See generally ECF No. 1. On November 22, 2019, Plaintiff Hall 3 filed his First Amended Class Action Complaint, adding causes of action for negligent 4 misrepresentation, concealment/non-disclosure, and intentional misrepresentation. See 5 generally ECF No. 15. On January 11, 2021, Plaintiff Hall filed his Second Amended Class 6 Action Complaint, which retained all causes of action and added three Plaintiffs: 7 Julie Drassinower, a California resident who booked her room in New York on the Marriott 8 website; Kevin Branca, a California resident who booked his room in Hawaii on the Costco 9 Travel website; and Jesse Heineken, a Kansas resident who booked his room in California 10 on the Marriott website. ECF No. 54 at ¶¶ 66–95. 11 On May 27, 2021, Plaintiff Hall and Plaintiff Branca filed the operative Third 12 Amended Class Action Complaint, which retained all causes of action, removed Plaintiffs 13 Drassinower and Heineken, and added a third Plaintiff from a related case, 14 George Abdelsayed, a California resident who booked his room in California on the 15 Marriott app. ECF No. 82 at ¶¶ 75–76; see ECF No. 78 at 4 (consolidating Hall and 16 Abdelsayed cases and requiring the filing of a consolidated complaint). The operative Third 17 Amended Class Action Complaint was also filed on behalf of both a “Nationwide Class”— 18 19 20 1 The CLRA prohibits “unfair methods of competition and unfair or deceptive acts or 21 practices.” CAL. CIV. CODE § 1770. The UCL prohibits any “unlawful, unfair or fraudulent business act or practice.” CAL. BUS. & PROF. CODE § 17200. The FAL prohibits a business 22 from disseminating any statement “which is untrue or misleading, and which is known, or 23 which by the exercise of reasonable care should be known, to be untrue or misleading.” CAL. BUS. & PROF. CODE § 17500. Together, these three statutes “prohibit not only 24 advertising which is false, but also advertising which, although true, is either actually 25 misleading or which has a capacity, likelihood or tendency to deceive or confuse the public.” Moore v. Mars Petcare US, Inc., 966 F.3d 1007, 1017 (9th Cir. 2020) (quoting 26 Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008)). Claims under each of 27 these statutes are governed by the “reasonable consumer” test. Under this standard, the plaintiff must show that “members of the public are likely to be deceived.” Williams, 552 28 1 defined as “[a]ll U.S. citizens who reserved or booked a Marriott owned or franchised hotel 2 room online and stayed in any such room for overnight accommodation and were charged 3 an amount therefore that was higher than the room rate quoted or advertised per day plus 4 government imposed taxes and government imposed fees in their respective state of 5 citizenship on or after January 1, 2012 and until the Class is certified, for personal use and 6 not for resale,”—and a “California Class”—defined as All persons who reserved or booked 7 a Marriott owned or franchised hotel room online in California and stayed in any such room 8 for overnight accommodation and were charged an amount therefore that was higher than 9 the room rate quoted or advertised per day plus government imposed taxes and government 10 imposed fees in California on or after January 1, 2012 and until the Class is certified, for 11 personal use and not for resale[.]” ECF No. 82 at ¶¶ 85–86. 12 Plaintiffs allege that Defendant engages in false and deceptive advertising in the way 13 Defendant represents the prices for Defendant’s hotel rooms, services, and amenities. See 14 generally ECF No. 82; id. at ¶ 17 (“At issue in this case is the growing and continued unfair 15 and deceptive practice of hotels advertising bargain-priced daily room rates online, but not 16 including fees charged in the initially advertised room rate”). Defendant is a multinational 17 hospitality company that owns, manages, and franchises2 at least 189 hotels and resorts 18 worldwide. Id. at ¶¶ 11, 21. Defendant advertises its available rooms and daily room rates 19 online through its own website and the websites of third-party online travel agencies 20 (“OTAs”), such as Priceline and Expedia. Id. at ¶ 16. 21 When a consumer uses Defendant’s website to search for a hotel room by destination 22 and date, Defendant’s website will list various hotels and rooms with matching availability. 23 Id. at ¶ 23. At this initial stage, the quoted daily room rate for each hotel does not include 24 or mention the mandatory resort fee a consumer must pay. Id. at ¶ 24. Once a consumer 25

26 27 2 Though Defendant’s franchise agreements typically allow franchisees to set their own rates for guest room charges, franchisees must still comply with Defendant’s resort fee 28 1 selects a particular property, Defendant’s website directs the consumer to another webpage 2 that lists the rooms available at the selected property, along with the daily rates for those 3 rooms. Id. at ¶¶ 25–26. This webpage displays a light blue box at the top of the page with 4 blue bold font that states that a “daily destination amenity fee will be added to the room 5 rate,” followed by the hours for the property’s concierge lounge. Id. 6 If a consumer then selects a specific room from the selected property, Defendant’s 7 website brings the consumer to a page titled, “Review Reservation Details.” Id. at ¶ 28. 8 This page displays a picture of the room; the details of the reservation, such as date, number 9 of rooms, and guests per room; and two drop-down menus at the bottom of the page, one 10 titled “Choose Room Features” and the other titled “Summary of Charges.” Id. If the 11 consumer clicks the “Summary of Charges” menu, this same page drops down a summary 12 breaking down the overall costs of the reservation by room rate, “Destination Amenity 13 Fee,” and “Estimated government taxes and fees.” Id. at ¶ 29. Below the total cost listed in 14 this drop-down menu, the page also displays, in smaller and lighter-colored font, 15 “Additional Charges,” including on-site parking and valet parking fees. Id. 16 At some properties, Defendant does not charge an amenity fee. See, e.g., id. at ¶ 35. 17 When a consumer selects a room reservation at one of these properties, Defendant’s 18 website displays the same “Review Reservation Details” page, including the same 19 “Summary of Charges” presenting the total charge for the room consisting of the room rate 20 plus “USD Taxes and Fees.” Id. Since these properties do not charge an amenity fee, 21 however, the “USD Taxes and Fees” consists solely of government taxes and fees. Id. at 22 ¶ 38. Plaintiff alleges that this is misleading because Defendant’s hotel room presents 23 “USD Taxes and Fees” to represent one component of the hotel room charge, regardless of 24 whether the “USD Taxes and Fees” includes an amenity fee or not. See id. at ¶¶ 35–36. 25 Plaintiffs allege that Defendant also deceives consumers by misusing former price 26 comparisons. Id. at ¶¶ 51–52. For example, Defendant advertised its room rate as $192, 27 with a line through it, with the bargain rate of $148 next to it. Id. at ¶ 51. Due to the amenity 28 fee raising the rate to $188, Plaintiff alleges that Defendant misleads consumers that they 1 are saving $44, when in reality, they are only saving $4. Id. 2 Plaintiffs further allege that Defendant’s website is misleading because of 3 inconsistent representations regarding what amenities are covered by the amenity fee or 4 are offered complimentary. See, e.g., id. at ¶¶ 37–38. For example, Defendant’s hotel may 5 indicate that the amenity fee “includes high speed Internet/resort equipment rentals/fitness 6 classes and more.” Id. at ¶ 37. Nonetheless, Defendant may simultaneously advertise that 7 fitness classes are “[c]omplimentary” and that the “[f]itness center is free of charge for 8 hotel guests.” Id. at ¶ 38. 9 Plaintiffs also allege that Defendant misleadingly fails to include resort fees in the 10 rates advertised by OTAs. See, e.g., id. at ¶ 40. On Expedia, for example, the quoted room 11 rate does not include or mention any resort or amenity fee. Id. When a consumer clicks 12 “Select your room,” Expedia directs the consumer to another page containing the same 13 quoted room rate. See id. at ¶ 41. Selecting the quoted price then directs the consumer to 14 another page that fails to display a resort or amenity fee. See id. at ¶¶ 42–43. Instead, the 15 page includes only the discounted bargain price and the “Taxes and Fees,” see id., 16 indicating that there is a “Mandatory property fee: Collected by property” with a link to 17 “Details.” Id. at ¶¶ 43, 45. Only by clicking on “Details” does the consumer learn the 18 amount of the resort fee and what it claims to include. See id. at ¶ 44. Nonetheless, Expedia 19 may advertise that a room includes “Free WiFi,” while simultaneously indicating that the 20 “Resort fee” includes “Internet access.” See id. at ¶ 45. 21 II. PROCEDURAL BACKGROUND 22 On June 4, 2021, Plaintiff served his amended responses to Defendant’s first set of 23 discovery requests. ECF No. 101 at 109, 143. On June 24, 2021, pursuant to the Court’s 24 Chambers Rules, the parties notified the Court that they disagreed about whether Plaintiff 25 should be required to produce documents relating to various ticket purchases. Email to 26 Chambers (June 24, 2021 at 11:21 a.m.); see Chmb.R. at 2. The Court held a telephonic 27 discovery conference on June 30, 2021. ECF No. 94. The Court found it appropriate to 28 issue a briefing schedule. ECF No. 95. The parties timely filed their Joint Motion for 1 Determination of Discovery Dispute on July 15, 2021. ECF No. 101. This order follows. 2 III. DISCOVERY REQUEST AT ISSUE 3 Defendant seeks to compel responsive documents to its first set of Requests for 4 Production of Documents (“RFPs”), specifically, number 16. ECF No. 101 at 3–6, 133. In 5 RFP No. 16, Defendant requests: 6 All documents [dated January 1, 2012 to December 31, 2017] relating to any purchase by Mr. Branca or someone acting on his behalf and/or at his direction 7 of any product or service for which he was charged and paid a mandatory fee, 8 including but not limited to fees associated with hotels, airline tickets, sporting event tickets, and concert tickets. 9 10 Id. at 133; see id. at 3, 145 (narrowing request, originally seeking documents from 11 January 1, 2010, to the present). Plaintiff objects to the discovery request on the grounds3 12 that it is overbroad, not relevant to any party’s claims or defenses, not proportional to the 13 needs of the case, and unduly burdensome. Id. at 6, 133–34. 14 IV. PARTIES’ POSITIONS 15 Defendant contends that, because Plaintiff alleges that he believed the advertised 16 room rate was the total price, “a jury likely would have to find that [Plaintiff] never had 17 encountered partition practicing, and thus the notion of a website advertising a base rate 18 and then later adding charges before a purchase is made was entirely foreign to him.” ECF 19

20 21 3 Plaintiff also objected on the grounds that the requests are vague, ambiguous, duplicative, harassing, and subject to attorney-client privilege, work product doctrine, and Plaintiff’s 22 right to privacy. ECF No. 101 at 115, 133–34. However, these objections were not 23 reasserted in the instant motion, and are therefore deemed waived. See, e.g., SolarCity Corp. v. Doria, No. 16cv3085-JAH-RBB, 2018 WL 467898, at *3 (S.D. Cal. Jan. 18, 2018) 24 (courts in this district “generally consider[ ] only those objections that have been timely 25 asserted in the initial response to the discovery request and that are subsequently reasserted and relied upon in response to the motion to compel.”); Sherwin-Williams Co. v. Earl 26 Scheib of Cal., Inc., No. 12cv2646-JAH-JMA, 2013 WL 12073836, at *2 n.1 (S.D. Cal. 27 Mar. 4, 2013) (deeming all objections raised in response to the discovery requests but not addressed in the discovery motion to be moot or waived, limiting its review to arguments 28 1 No. 101 at 4. Thus, Defendant seeks to discover Plaintiff’s past experience with partition 2 pricing. Id. For example, “[i]f the evidence shows that [Plaintiff] made dozens of online 3 purchases involving partition pricing before making the subject Marriott reservation, it 4 makes it far less likely that the partition pricing on Costco’s website allegedly deceived 5 him because he would have been well familiar with the concept of an advertised price not 6 being the total price.” Id. at 4–5. Defendant requests information for products and services 7 outside the hotel industry (e.g., airline tickets, sporting event tickets, and concert tickets), 8 and argues that these documents are still relevant because the current lawsuit is based on 9 partition pricing via the “Costco website, Marriott website, Expedia website, and Orbitz 10 website,” which disclose resort fees in their “own unique manner.” Id. Defendant also 11 reiterates that Plaintiff Hall previously agreed to produce the same documents at issue here, 12 seemingly undermining Plaintiff Branca’s position that the information is not relevant. Id. 13 at 5. Defendant further argues that its request is not unduly burdensome because it asked 14 Plaintiff “to apply a few dozen search terms (such as ‘Delta,’ ‘Ticketmaster,’ ‘Airbnb,’ 15 etc.) … to his email accounts[,]” and reiterates that Plaintiff “will not need to review 16 account statements or cross reference any documents.” Id. at 5–6. 17 Plaintiff contends that the information sought by Defendant is not relevant. Id. at 7. 18 Because “[t]he key issue in this case is whether the representations and omissions on 19 Marriott’s website and the OTA websites are misleading to a reasonable consumer,” 20 Plaintiff’s “familiarity with purchasing airline tickets, sporting event tickets, and concert 21 tickets is not relevant in determining whether Plaintiff Branca and other class members 22 were deceived by” Defendant. Id. at 7–8. Plaintiff Branca also explains that, just because 23 Plaintiff Hall produced the documents, that it does not have any bearing on whether the 24 documents are relevant. Id. at 9. Differentiating the burden to Plaintiff Branca here, counsel 25 represents that Plaintiff Hall’s employer had produced the documents, not Plaintiff Hall 26 himself. Id. Plaintiff then recounts the burden he would face in “scouring through his 27 account statements and searching for statements from financial institutions he may no 28 longer use.” Id. at 8. 1 V. LEGAL STANDARD 2 Nonprivileged information is discoverable under Rule 26 if it is (1) relevant to any 3 party’s claim or defense, and (2) proportional to the needs of the case. FED. R. CIV. P. 26(b). 4 Information need not be admissible to be discoverable. Id. The Court has broad discretion 5 in determining relevancy for discovery purposes. See Hallett v. Morgan, 296 F.3d 732, 751 6 (9th Cir. 2002); see cf. U.S. Fidelity & Guar. Co. v. Lee Investments L.L.C., 641 F.3d 1126, 7 1136 (9th Cir. 2011) (“District courts have wide latitude in controlling discovery, and 8 [their] rulings will not be overturned in the absence of a clear abuse of discretion.”) 9 (internal quotation and citations omitted). 10 When analyzing relevance, Rule 26(b) no longer limits discovery to information 11 “reasonably calculated to lead to the discovery of admissible evidence.” In Re Bard IVC 12 Filters Prods. Liab. Litig., 317 F.R.D. 562, 563–64, 564 n.1 (D. Ariz. 2016) (discussing 13 the 2015 amendments to the Federal Rules of Civil Procedure and the advisory committee’s 14 explicit removal of the phrase “reasonably calculated,” and listing cases that continue to 15 use the outdated pre-2015 standard). The relevance standard is commonly recognized as 16 one that is necessarily broad in scope in order “to encompass any matter that bears on, or 17 that reasonably could lead to other matter that could bear on, any issue that is or may be in 18 the case.” Doherty v. Comenity Capital Bank, No. 16cv1321-H-BGS, 2017 WL 1885677, 19 at *2 (S.D. Cal. May 9, 2017) (internal quotation omitted). Regardless of its broad nature, 20 however, relevance is not without “ultimate and necessary boundaries.” Id. 21 Information must be “proportional to the needs of the case” to fall within the scope 22 of permissible discovery. FED. R. CIV. P. 26(b)(1). When analyzing the proportionality of 23 a party’s discovery requests, a court should consider the importance of the issues at stake 24 in the action, the amount in controversy, the parties’ relative access to the information, the 25 parties’ resources, the importance of the discovery in resolving the issues, and whether the 26 burden or expense of the proposed discovery outweighs its likely benefit. Id. “The 2015 27 amendments to Rule 26(b)(1) emphasize the need to impose ‘reasonable limits on 28 discovery through increased reliance on the common-sense concept of proportionality.’” 1 Roberts v. Clark Cty. Sch. Dist., 312 F.R.D. 594, 603 (D. Nev. 2016) (internal citation 2 omitted). Both discovery and Rule 26 are intended to provide parties with “efficient access 3 to what is needed to prove a claim or defense, but eliminate unnecessary or wasteful 4 discovery.” Id. 5 VI. DISCUSSION 6 Though the information sought is not relevant to Plaintiff’s claims,4 the Court finds 7 that it is relevant to Plaintiff’s credibility. The Court agrees with Defendant that evidence 8 that Plaintiff “made dozens of online purchases involving partition pricing before making 9 the subject Marriott reservation” could negatively impact his credibility, since it would be 10 “far less likely that the partition pricing on Costco’s website [] deceived him because he 11 would have been well familiar with the concept of an advertised price not being the total 12 price.” ECF No. 101 at 4–5. However, the Court finds that RFP No. 16 is overbroad. 13 Plaintiff’s prior hotel accommodation purchases are relevant, but the fee structures and 14 15 16 4 Whether Plaintiff himself was deceived (see ECF No. 101 at 4–5) is not at issue. See 17 Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1025–26 (9th Cir. 2008) (“a UCL fraud claim requires no proof that the plaintiff was actually deceived”); Williams, 552 F.3d at 18 938 (“Appellants’ claims under these California statutes [UCL and CLRA] are governed 19 by the ‘reasonable consumer’ test. [] ‘[T]he false or misleading advertising and unfair business practices claim must be evaluated from the vantage of a reasonable consumer.’ 20 []”) (internal citation omitted); Charbonnet v. Omni Hotels & Resorts, No. 20cv1777- 21 CAB-DEB, 2020 WL 7385828, at *3 (S.D. Cal. Dec. 16, 2020) (“Claims under each of these statutes [CLRA, UCL, and FAL] are governed by the ‘reasonable consumer’ test. 22 Under this standard, the plaintiff must show that ‘members of the public are likely to be 23 deceived.’ [].”) (internal citation omitted); Hadley v. Kellogg Sales Co., 324 F. Supp. 3d 1084, 1116 (N.D. Cal. 2018) (“deception and materiality under the FAL, CLRA, and UCL 24 are governed by an objective ‘reasonable consumer’ test. Because deception and 25 materiality are objective questions, Plaintiff ‘has no burden to establish that there is a uniform understanding among putative class members as to the meaning of’ the challenged 26 health statements, ‘or that all or nearly all of the class members shared any specific belief.’ 27 []. Instead, Plaintiff need only make ‘an objective showing of a probability that a significant portion of the relevant consumers acting reasonably could be misled’ by the challenged 28 1 disclosure, as well as purchasing models, for airline tickets, sporting event tickets, and 2 concert tickets are distinguishable5 from the hotel reservations at issue in this case.6 Though 3 the Court finds the hotel accommodation aspect of RFP No. 16 relevant, the Court declines 4 to grant Defendant’s motion to compel. In RFP No. 9, Defendant requested “[a]ll 5 documents constituting or relating to reservations at a non-Marriott Hotel charging a Resort 6 Fee made by Mr. Branca or on his behalf and/or at his direction.” Id. at 125. Thus, ordering 7 production of “[a]ll documents relating to any purchase by Mr. Branca or someone acting 8 on his behalf and/or at his direction of any product or service [associated with hotels] for 9 which he was charged and paid a mandatory fee”—RFP No. 16—would be duplicative. 10 See id. at 133; see also FED. R. CIV. P. 26(b)(2)(C)(i) (the court must limit the extent of 11 discovery when “the discovery sought is … duplicative”). 12

13 5 For example, NFL tickets sold through Ticketmaster are listed in multiple locations on 14 the website as “$95.00 ea + Fees.” See Atlanta Falcons v. Cleveland Browns, NFL TICKET 15 EXCHANGE, TICKETMASTER, https://www.ticketmaster.com/atlanta-falcons-vs-cleveland- browns-atlanta-georgia-08-29-2021/event/0E005A8993E71AAD (last visited Aug. 4, 16 2021). Airline tickets sold through Delta are listed in multiple locations as the ultimate 17 price, i.e., they already include all taxes and fees. See Trip Summary, DELTA, https://www.delta.com/complete-purchase/trip-summary?cacheKeySuffix=b284be4d- 18 8c2f-4afb-9ddd-dcce9f283534&cartId=d8f5582c-7223-4db2-a50c- 19 287c420da91f&app=sl-sho (last visited Aug. 4, 2021). 20 6 Additionally, while negotiating Plaintiff Hall’s response to the identical discovery 21 request, Defendant’s counsel asked Plaintiffs’ counsel whether “Mr. Hall confirm[ed] that the only websites where he made a purchase where a mandatory fee was charged are 22 contained in the following list? United, Delta, American, Southwest, JetBlue, [Alaska], 23 Spirit, Ticketmaster, Orbitz, Expedia, Priceline, Booking, Airbnb, Stubhub, and LiveNation.” ECF No. 101 at 147 (internal quotation marks omitted). Here, Defendant 24 “simply asks [Plaintiff] Branca to apply a few dozen search terms [] which [Plaintiff] 25 Branca’s counsel had agreed to for [Plaintiff] Hall[.]” Id. at 5–6. However, those search terms were specific to Plaintiff Hall’s purchase history, and there is no evidence before the 26 Court that Plaintiff Branca used any of the websites—i.e., that the terms were relevant or 27 narrowly tailored to him. See cf. Rivera v. NIBCO, Inc., 364 F.3d 1057, 1072 (9th Cir. 2004) (noting generally that district courts “need not condone the use of discovery to 28 1 Vil. CONCLUSION 2 For the reasons set forth above, the Court DENIES Defendant’s motion to compel. 3 ||ECF No. 101. IT IS SO ORDERED. ° Dated: August 5, 2021 6 Wioev tH. Kvolanvl 7 Honorable Allison H. Goddard United States Magistrate Judge

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28