Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Drury v. Barcelona Holdings, LLC

United States District Court, D. Nevada

September 29, 2017

JAMES ROBERT DRURY, Plaintiff,
v.
BARCELONA HOLDINGS, LLC, et al., Defendants.

          ORDER

          C.W. Hoffman, Jr. United States Magistrate Judge

         Presently before the Court is pro se Plaintiff James Robert Drury's Motion for Partial Summary Judgment (ECF No. 78), filed on January 30, 2017. Defendants Barcelona Holdings, LLC, Siegel Group NV, Inc., Barcelona LV Holdings, LLC, Stephen G. Siegel, Michael F. Tisdale, Rhonda Armstrong, Celeste Souza, and Nakia Sanders (collectively “Siegel”) filed a response (ECF No. 87) on February 21, 2017, and Mr. Drury filed a reply (ECF No. 101) on March 27, 2017.

         Also before the Court is Siegel's Motion for Summary Judgment (ECF No. 90), filed on February 23, 2017. Mr. Drury filed a response (ECF No. 104) on April 4, 2017, and Siegel filed a reply (ECF No. 108) on May 2, 2017.

         Also before the Court is Mr. Drury's First Motion for Declaratory Judgment (ECF No. 83), filed on February 6, 2017. Siegel filed a response (ECF No. 87) on February 21, 2017, and Mr. Drury filed a reply (ECF No. 103) on March 28, 2017.

         I. Background

         This case arises from a dispute as to whether Siegel improperly charged Mr. Drury a transient lodging tax (“the Tax”) while he was a resident of Siegel Slots and Suites (“the Hotel”). From February 4, 2012 through November 22, 2013, Mr. Drury and his son were residents of the Hotel, which is Siegel's property. Pl's Decl. at ¶ 2 (ECF No. 78-1). Mr. Drury paid $159 for each week he resided at the Hotel, with no change to the weekly rate charged by Siegel at any time during his stay. Id. at ¶¶ 3, 14-15. Siegel's $159 rate was “all-inclusive, ” that is, he was not charged any additional amount above this rate for taxes or other fees. Decl. of Michael Tisdale, at ¶ 4 (ECF No. 86). While Mr. Drury was a resident at the Hotel, it was subject to Clark County Code Chapter 4.08, (“Chapter 4.08”) which provides for a tax of 12% on rent received for the first thirty days of a lodger's stay, but not thereafter. Id. at ¶¶ 5-6.

         On March 17, 2012, Mr. Drury first complained to Siegel that he was still being charged $159 per week despite the fact that he had been a resident of the Hotel for more than thirty days. Pl's Decl. at ¶ 4. Hotel staff refused to reduce the weekly rate, and Mr. Drury continued to pay $159 per week. Id. at ¶ 6. Mr. Drury continued to periodically raise this issue to the staff and management for the duration of his stay. Id. at ¶¶ 6-17. On February 18, 2013, Mr. Drury and Michael Tisdale (a senior vice-president of The Siegel Group of Nevada, Inc.) exchanged several e-mails about whether Mr. Drury was owed a refund. Pl's Resp. to Def's Mot. for Summ. J., Ex. 4 (ECF No. 104-4).

         Michael Tisdale determined that the Hotel had continued to list the Tax on bills and receipts for a number of its occupants beyond the thirty-day period for which it was applicable. Decl. of Michael Tisdale, at ¶¶ 5-6. According to Mr. Tisdale, this was due to a malfunction of the Hotel's computer system, and Mr. Drury was one of the tenants affected. Id. On February 27, 2013, Mr. Drury received a refund from Siegel of $920, labeled “Refund for taxes paid over 30 days.” Pl's Resp. to Def's Mot. for Summ. J., Ex. 2 (ECF No. 104-2). See also Decl. Of Michael Tisdale, at ¶ 8. Siegel contends this payment was not an admission that any of Mr. Drury's claims are valid or that it owed Mr. Drury any money, but was motivated by a desire to retain Mr. Drury as a customer, avoid the cost of further investigation of this issue, and other unnamed factors. Id. Upon review of this matter, the Clark County Department of Business License did not make any specific determination that Mr. Drury was improperly charged the Tax. Decl. of Alan Bacon, at ¶¶ 5-6 (ECF No. 88). After the refund was issued, Siegel informed Mr. Drury via e-mail it planned to charge Mr. Drury $159 per week for any further time he remained at the Hotel. Pl's Resp. to Def's Mot. for Summ. J., Ex. 4 (ECF No. 104-4).

         After the refund, Mr. Drury continued to pay $159 per week for the duration of his stay. Pl's Decl. at ¶ 15. Mr. Drury continued to contend that Siegel was not entitled to charge him $159 and request further refunds. Id. On November 19, 2013, Mr. Drury e-mailed Rhonda Armstrong, a Siegel employee, to request a refund. Id. at 17. The following day, Siegel posted a “Seven Day No- Cause Notice to Quit” (“No Cause Notice”) on Mr. Drury's door. Pl's Mot. for Summ. J., Ex. 6 (ECF No. 78-6). On November 22, 2013, Mr. Drury voluntarily vacated the Hotel. Pl's Decl. at ¶ 19.

         On October 23, 2015, Mr. Drury filed a complaint, which he amended on May 5, 2016. Compl. (ECF No. 4); Am. Compl. (ECF No. 7). In his amended complaint, Mr. Drury brings claims against Siegel for deceptive business practices, retaliatory eviction, [1] abuse of process, failure to provide tax-exempt status, failure to post notice of hotel rates, failure to provide notice of rate increase, illegal contract, failure to refund tax overcharge, conversion, fraud, intentional infliction of emotional distress, negligent infliction of emotional distress, unjust enrichment, and breach of the covenant of good faith and faithful dealing. Underlying these claims is Mr. Drury's contention that Siegel improperly refused to reduce his room rate after the Tax no longer applied.

         Mr. Drury now moves for partial summary judgment on his claims for failure to provide tax-exempt status, [2] retaliatory eviction, abuse of process, failure to refund tax overcharge, and conversion. He also moves for a declaratory judgment that Siegel violated Chapter 4.08 and seeks a court-ordered audit regarding the number of impacted tenants. Siegel counter-moves for summary judgment on all of Mr. Drury's claims, and opposes the motion for declaratory judgment.

         II. Analysis

         Summary judgment is appropriate if the pleadings, the discovery and disclosure materials on file, and any affidavits show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), (c). A fact is “material” if it might affect the outcome of a suit, as determined by the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is “genuine” if sufficient evidence exists such that a reasonable fact finder could find for the non-moving party. Villiarmo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002).

         Initially, the moving party bears the burden of proving there is no genuine issue of material fact. Leisek v. Brightwood Corp., 278 F.3d 895, 898 (9th Cir. 2002). The moving party may discharge this burden by “‘showing' - that is, pointing out to the district court - that there is an absence of evidence to support the nonmoving party's case.” Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir. 2000) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)); see also Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000) (stating that “the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial”). After the moving party meets its burden, the burden shifts to the non-moving party to produce evidence that a genuine issue of material fact remains for trial. Leisek, 278 F.3d at 898. The nonmoving party may not rely on the bare allegations of a complaint to defeat a summary judgment. Far Out Prods., Inc. v. Oskar, 247 F.3d 986 (9th Cir. 2001). The Court views all evidence in the light most favorable to the non-moving party. Id.

         A. Deceptive Business Practices

         Mr. Drury's first claim includes four distinct allegations against Siegel: failure to disclose the tax-exemption, misrepresentation, fraudulent concealment, and fraudulent conversion. Mr. Drury claims that Siegel failed to disclose that the Tax does not apply to lodgers who stay for more than thirty days, that Siegel misrepresented and concealed its duties to comply with Chapter 4.08, and that he was entitled to a reduced rate for most of his stay at the Hotel since the Tax no longer applied after the first thirty days. The parties both move for summary judgment on this claim. Mr. Drury argues that the Hotel did not lower his rate after the thirty-day period, so did not apply the exemption required under § 4.08.050(b), and that §§ 4.08.055(c) and 4.08.075(c) provide for a private right of action. Siegel argues that Chapter 4.08 does not provide a private right of action, nor does it require that the Tax be passed along to guests, so it is not obligated to reduce its rate after that exemption applies. Siegel further argues that in any event, Mr. Drury was never charged the Tax, so it did not misrepresent or conceal any relevant fact.

         Chapter 4.08 provides for a tax of 12% on all transient lodging establishments, to be collected from “every operator in Clark County.” Clark County Code § 4.08.010. The Tax applies only to rents received for the first thirty days of a lodger's residency. Id. at § 4.08.050(a). The Tax “constitutes a debt owed by the operator to the county which is extinguished only by payment thereof to the Clark County department of business license.” Id. at § 4.08.010(b). The Tax “may be collected from the paying transient guests and may be shown as an addition to the rent charged by the transient lodging establishment[, ]” but only the operator is liable for the Tax “whether or not it is actually collected from the paying transient guest.” Id. at § 4.08.010(c). There is no provision of Chapter 4.08 that mandates that the Tax be included in the rent charged to transient guests, nor is there any requirement that operators reduce rates after thirty days, when the Tax no longer applies.

         Enforcement of the provisions of the Tax is explicitly granted to the director of the Clark County department of business license. Id. at § 4.08.105. The director is authorized and empowered to prescribe, adopt and enforce rules and regulations relating to the administration and enforcement of the Tax. Id.

         While § 4.08.055(c) provides that a hotel operator shall refund any over-collected tax to an occupant from whom it was incorrectly collected, this creates a duty on the part of a hotel operator, not a power to enforce on the part of a guest. As for § 4.08.075(c), which provides that “[n]o transient lodging tax may be refunded to an operator who collected it unless the operator has refunded the transient lodging tax to the occupant who paid it[, ]” this provision sets a condition precedent to Clark County issuing any refund to a hotel operator, but does not give any powers of enforcement to a guest. There is no provision in Chapter 4.08 that explicitly grants power to enforce any provision to anyone other than the director.

         Even in the absence of an explicit private right of action, one may be inferred under certain circumstances. This case is before the Court based on diversity jurisdiction, which requires the Court to “apply state substantive law and federal procedural law.” Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427 (1996). Therefore, to determine whether a private right of action exists under Chapter 4.08, the Court will apply Nevada law. The Nevada Supreme Court has held that “the absence of an express provision providing for a private cause of action to enforce a statutory right strongly suggests that the Legislature did not intend to create a privately enforceable judicial remedy.” Baldonado v. Wynn Las Vegas, LLC, 194 P.3d 96, 101 (Nev. 2008) (finding no private right of action for a statute that was silent as to enforcement). The Baldonado Court provides a three-part test to determine when a private right of action may be inferred from an ambiguously worded statute. Id. at 101. However, when presented with statutory language that is “clear and unambiguous, we give effect to the plain and ordinary meaning of the words . . .” Williams v. United Parcel Servs., 302 P.3d 1144, 1147 (Nev. 2013). Therefore, when a statute is clear, courts “do not resort to other sources, such as legislative history, in ascertaining that statute's meaning.” Id.

         Here, the drafters of Chapter 4.08 took clear and specific efforts to provide for enforcement of the Tax, prescribing that power to the director of the Clark County department of business license, with the consent and approval of the board of county commissioners of Clark County, Nevada. Clark County Code §§ 4.08.005, 4.08.105. Neither party asserts that any other statute provides for enforcement of Chapter 4.08, and within the statute itself, there is no ambiguity in the language as to enforcement. Rather, the explicit provisions granting enforcement authority to the director supports the conclusion that the drafters did not intend to create a private right of action for Chapter 4.08. Moreover, § 4.08.075, which requires that refunds of the Tax must be requested from the department of business license, further supports this interpretation of Chapter 4.08. Given the explicit language providing for enforcement by the director, and its unambiguous language, the plain meaning of Chapter 4.08 does not create a private right of action. Mr. Drury's claims that seek to enforce provisions of Chapter 4.08 must therefore fail as a matter of law.

         Mr. Drury's claim for deceptive business practices includes allegations for failure to disclose tax-exemption, misrepresentation, and fraudulent concealment, all of which rely on § 4.08.100, a provision which requires hotel operators to display notice to occupants of the Tax. Mr. Drury's allegation of fraudulent conversion is brought under Chapter 4.08 generally, asserting that Siegel collected an amount higher than permitted under the Tax. Since all of the allegations supporting the claim for deceptive business practices seek to enforce Chapter 4.08, which does not provide for a private right of action, they fail as a matter of law. The Court will grant summary judgment in favor of Siegel and against Mr. Drury on Count 1.

         B. Retaliatory Conduct and Abuse of Process

         Mr. Drury's claims for retaliatory conduct under Nevada Revised Statute § 118A.510 and abuse of process are based on the contention that Siegel evicted him in retaliation for his complaints to the Clark County Auditor's Office, and for his threats to pursue legal action against Siegel regarding its refusal to reduce the weekly rate. The parties both move for summary judgment on these claims. Mr. Drury argues that Siegel's No Cause Notice was retaliation to Mr. Drury's attempts to attain a refund from Siegel, that the timing of the notice shows that it was retaliatory and meant to intimidate, and that the provision of Chapter 4.08 provide for a private right of action.

         Siegel argues that Chapter 4.08 does not provide for a private right of action, that Mr. Drury does not belong to any class of tenants that are protected by Nevada's retaliatory conduct statute, that Mr. Drury has failed to provide proof of damages for these claims, that its No Cause Notice was not issued for any ulterior motive, and that the notice was not a judicial process.

         As to Siegel's argument that these claims seek to enforce Chapter 4.08, the Court draws a distinction between claims that arise from a conflict about Chapter 4.08, and claims that arise under the statute itself. Mr. Drury seeks relief for what he claims is retaliatory eviction because of his requests for a refund that he asserts he was entitled to receive under Chapter 4.08. He does not seek to enforce any provision of Chapter 4.08 in this claim, so the Court will consider it on its merits.

         To prevail on a claim for retaliatory conduct under Nevada Revised Statutes § 118A.510 a plaintiff must show that the landlord retaliated to one of the following situations:

(a) The tenant has complained in good faith of a violation of a building, housing or health code applicable to the premises and affecting health or safety to a governmental agency charged with the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.