California Legal Brief

The Rule of Aerni is that section 1940.1 does not require individualized proof that each class member used the hotel as their primary residence; rather, whether a hotel is "residential" is a hotel-wide inquiry based on the character and intended/actual use of the hotel as a whole, under circumstances where plaintiffs seek class certification for claims alleging the "28-day shuffle" practice at residential hotels.

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

Plaintiff Appellants were Melissa I. Aerni and Katherine Atsaves — hotel guests who stayed repeatedly at defendants' hotel for 28-day periods followed by mandatory 3-day checkout periods.

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

The suit sounded in violations of Civil Code section 1940.1 (the "28-day shuffle" statute), along with claims for violations of Civil Code section 52.1, negligence, and unfair competition. All causes of action were premised on alleged violations of section 1940.1.

The key substantive facts leading to the suit were that defendants owned a 134-room economy hotel that enforced a maximum 28-day stay policy applying to all guests, requiring checkout and complete vacation of the property for at least three days before reregistering, with a hotel representative testifying that a purpose of this policy was to avoid creating landlord-tenant relationships with guests.

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

The key question(s) on Appeal: Whether section 1940.1 requires individualized proof that each class member used the hotel as their primary residence, thus precluding class certification due to predominance of individual issues over common issues.

The Appellate Court held that section 1940.1 does not require plaintiffs to demonstrate that the hotel was their own primary residence; instead, determining whether a hotel is "residential" is a hotel-specific inquiry based on the character of the hotel and its intended or actual use, making class certification appropriate for claims based on a uniform hotel policy applied to all class members.

The case is inapplicable when the hotel policy is not uniform across all guests, when individualized circumstances of each guest's residency status are genuinely required for liability determination, or when the statutory violation claims do not arise from a common hotel-wide practice or policy.

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