United States District Court, D. Nevada
Hoffman, Jr. United States Magistrate Judge
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.
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.
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.
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.
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.
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).
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.
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,  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.
Drury now moves for partial summary judgment on his claims
for failure to provide tax-exempt status,  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.
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).
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.
Deceptive Business Practices
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.
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.
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.
§ 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.
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.
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.
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.
Retaliatory Conduct and Abuse of Process
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
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
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.
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 ...