Evenchik v. Avis Rent a Car Sys., LLC
| Decision Date | 17 September 2012 |
| Docket Number | CASE NO. 12-cv-61 BEN (DHB) |
| Parties | LYNN EVENCHIK, on behalf of herself and all others similarly situated, Plaintiffs, v. AVIS RENT A CAR SYSTEM, LLC, Defendant. |
| Court | U.S. District Court — Southern District of California |
Presently before the Court is the motion to dismiss filed by Defendant Avis Rent A Car System, LLC ("AVIS"). For the reasons stated below, the motion is denied.
According to the Complaint, Plaintiff rented a car from AVIS in July 2011, in the County of San Diego, California. She was charged $311.36. According to the Complaint, at that time AVIS gave large price discounts to members of two groups: the International Gay and Lesbian Travel Association and the National Gay and Lesbian Chamber of Commerce. Plaintiff is not a member of either group. The Complaint further alleges that AVIS did not give her the gay and lesbian group member price discount. Plaintiff alleges that California's Unruh Civil Rights Act () prohibits a business from discriminatingbetween its customers on the basis of sexual orientation. According to the Complaint, a business also violates California Business and Professions Code § 17200, which prohibits unfair business practices, when it gives price discounts to some customers, but not all customers, on the basis of sexual orientation. Plaintiff also asserts a class action on behalf of other similarly situated persons who rented cars from AVIS in California and who did not receive the gay and lesbian group member price discount. AVIS does not challenge the class action allegations at this time. AVIS seeks only dismissal of the Complaint on the basis that Plaintiff has failed to state a claim for relief.
Defendant requests the Court take judicial notice of six documents in support of their motion to dismiss. The six documents appear to be screen shots of various business web pages. Exhibits A and B are undated AVIS web pages listing various offers. Exhibit C is a Hilton web page dated Feb. 22, 2012. Exhibit D is an United Airlines web page (undated). Exhibit E appears to be an aavacations.com web page (undated). Exhibit F appears to be a myrewardzone.bestbuy.com web page (undated). None of these exhibits are the type of documents for which judicial notice can be taken under Federal Rule of Evidence 201(b).
Federal Rule of Evidence 201(b) explains that "[a] judicially noticed fact must be one not subject to reasonable dispute in that it is . . . capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Judicial notice is proper only when the matter is "beyond reasonable controversy." Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1151 (9th Cir. 2005) (). Screen shots of web pages, especially because of the ever-changing content, are not typically the type of document containing facts, the accuracy of which is capable of ready determination. See e.g., In re Easysaver Rewards Litig., 737 F. Supp. 2d 1159, 1167-68 (S.D. Cal. 2010) (Anello, J.) (); Ferrington v. McAfee, Inc., 2010 U.S. Dist. LEXIS 106600 (N.D. Cal. Oct. 5, 2010) (); but see Kenneally v. Bank of N.S., 711 F. Supp. 2d 1174, 1183 (S.D. Cal. 2010)(Hayes, J.) (). The Court declines AVIS's request to take judicial notice of the web page screen shots under Rule 201.
Alternatively, AVIS argues that the screen shots should be considered under the doctrine of incorporation by reference. In resolving a Rule 12(b)(6) motion, a court generally cannot consider material outside the complaint. Branch v. Tunnel, 14 F.3d 449, 453-54 (9th Cir. 1994). However, a court may consider exhibits attached to the complaint. Id. A court may treat such a document as "part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under the Rule 12(b)(6)." United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); see also Castagnola v. Hewlett-Packard Co., 2012 U.S. Dist. LEXIS 82026 (N.D. Cal. June 13, 2012) (). "Even if a document is not attached to a complaint, it may be incorporated by reference into a complaint if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff's claim." Ritchie, 342 F.3d at 908. "The defendant may offer such a document, and the district court may treat such a document as part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6)." Id. ().
AVIS asserts that Plaintiff references the AVIS website in her Complaint. The gist of the Complaint is about rental discounts based on a customer's sexual orientation not offered to Plaintiff at an AVIS airport car rental counter. It is not about rental transactions made through AVIS's website. Paragraph 10 of the Complaint refers to a "Avis-Prouder" website page, but the exhibit appears to be part of a computer file labeled: mhtml:file://C:\Documents and Settings\david\Destop\Avis - Prouder.mht. See Notice of Lodgment in Support, Exh. B. None of the documents offered by AVIS purport to complete the "Avis - Prouder" document.
The Complaint also refers generally to AVIS's website while quoting language about commission rates AVIS pays to its rental car affiliates. None of the documents offered by AVISpurport to complete the terms upon which AVIS offers commissions. AVIS cites no other references to AVIS's website nor references to the websites of Hilton, United Airlines, aavacations.com, or myrewardzone.bestbuy.com. The Court finds that the six exhibits offered by AVIS are not proper documents for applying the incorporation by reference doctrine. Defendant's request to take judicial notice is denied.
Defendant moves to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6). Dismissal is appropriate under Rule 12(b)(6) if the Complaint fails to state a plausible claim for relief on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556-57 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (). Under this standard, dismissal may be obtained if the Complaint fails to state enough facts to raise a reasonable expectation that discovery will reveal evidence of the matter complained of, or if the Complaint lacks a cognizable legal theory under which relief may be granted. Twombly, 550 U.S. at 556.
California law describes the contours of the claim for relief, since this suit is based upon diversity jurisdiction. "The task of a federal court in a diversity action is to approximate state law as closely as possible in order to make sure that the vindication of the state right is without discrimination because of the federal forum." U. S. Fidelity & Guar. Co. v. Lee Invest., LLC, 641 F.3d 1126, 1133-34 (9th Cir. 2011) (citations omitted). "In analyzing state law in a diversity case, we are bound by the decisions of the state's highest court. . . [and] [i]f the California Supreme Court has not decided the question, we are required to ascertain from all the available data what the state law is and apply it." Id. (citations omitted).
AVIS moves to dismiss the first claim for relief which alleges AVIS violated California's Unruh Civil Rights Act, California Civil Code §§ 51 et seq.1 A straight forward reading of the Actin light of the California Supreme Court decisions interpreting the Act, lead to the conclusion that Plaintiff has stated a plausible claim for relief, i.e., that AVIS violated the prohibitions of the Act regarding discrimination on the basis of sexual orientation. Plaintiff plausibly alleges a concrete business transaction took place. In addition, Plaintiff plausibly alleges that during the transaction AVIS charged her a higher price to rent a car because AVIS did not perceive her to be a lesbian or gay customer or because AVIS did not perceive her to be associated with favored lesbian or gay customer groups.
The Unruh Civil Rights Act "prevents discrimination in the form of pricing differentials." Chabner v. United of Omaha Life Ins. Co., 225 F.3d 1042, 1050 (9th Cir. 2000) (citing Koire v. Metro Car Wash, 40 Cal. 3d 24 (1985)). In Koire, the California Supreme Court observed that "[c]ourts have repeatedly held that the Unruh Act is applicable where unequal treatment is the result of a business practice." 40 Cal. 3d at 29. The supreme court explained, "The Act's proscription is broad enough to include within its scope discrimination in the form of sex-based price discounts." Id. at 30. It held that the Unruh Act was violated by a car wash business offering reduced rates to women, but not men. Id. at 32. In its ruling, the supreme court specifically warned against the offering of price discounts based upon sexual orientation. In regards to the type of discounts Plaintiff alleges AVIS gave to groups based on sexual orientation, the Koire court said: "It would be no less a violation of the Act for an entrepreneur to charge all homosexuals . . . reduced rates in his or her...
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