California Legal Brief

The Rule of Melissa I. Aerni et al. v. RR San Dimas, L.P., et al. is that Civil Code section 1940.1 does not require individualized proof that each plaintiff used a residential hotel as their own primary residence, under circumstances where plaintiffs seek class certification for violations of the statute's prohibition against the "28-day shuffle."

Appeal from order denying class certification in Superior Court, Los Angeles County.

Defendant Appellants were Melissa I. Aerni and Katherine Atsaves — hotel guests who repeatedly stayed 28-day periods at the Red Roof Inn between June 2022 and November 2022, forced to check out and vacate for three days before re-registering.

Plaintiff Respondents were RR San Dimas, L.P. and Mountain High/Holiday Hill Corporation — owners of the Red Roof Inn who enforced a maximum 28-day stay policy requiring all guests to check out and completely vacate for at least three days after 28 consecutive days before re-registering.

The suit sounded in violation of Civil Code section 1940.1, which prohibits the "28-day shuffle" practice. Additional claims included Civil Code section 52.1 violations, negligence, and unfair competition, all premised on the section 1940.1 violation.

The key substantive facts leading to the suit were defendants' enforcement since November 2018 of a uniform policy requiring all hotel guests to check out and vacate the property for at least three days after exactly 28 consecutive days of occupancy before being allowed to re-register, with a hotel representative testifying that a purpose was to avoid creating landlord-tenant relationships.

The procedural result leading to the Appeal: The trial court denied class certification, ruling that while the class was numerous, ascertainable, and plaintiffs were adequate representatives with typical claims, individualized issues predominated over common ones because the court interpreted section 1940.1 to require individualized proof that each class member used the hotel as their "primary residence."

The key question(s) on Appeal: Whether Civil Code section 1940.1 requires individualized proof that each plaintiff used the hotel as their own primary residence, making class certification inappropriate due to predominance of individual issues over common ones.

The Appellate Court held that section 1940.1 does not require plaintiffs to prove the hotel was their own primary residence, but rather requires a hotel-specific inquiry into whether the hotel as a whole is "residential" based on its character, intended use, and whether it is primarily used by transient guests with other primary residences, making this determination susceptible to common proof rather than individualized inquiry.

The case is inapplicable when the statutory violation claim requires individualized proof of each plaintiff's relationship to the defendant's conduct, or when the hotel's residential status varies significantly over different time periods requiring individualized temporal analysis.

The case leaves open the definition of what circumstances constitute a hotel being a guest's "primary residence," the numerical threshold at which a hotel is "primarily" used by transient guests, the time period for evaluating a hotel's residential status, and how the trial court should exercise its discretion on remand regarding class certification.