Bogosian Chose v. Accor Management US Inc. ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHELLE BOGOSIAN CHOSE, Case No. 19-cv-06174-HSG 8 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART MOTION TO 9 v. DISMISS AND MOTION TO STRIKE 10 ACCOR HOTELS & RESORTS Re: Dkt. No. 32 (MARYLAND) LLC, 11 Defendant. 12 13 Pending before the Court is Defendant Accor Hotels & Resort LLC’s motion to dismiss 14 and motion to strike. Dkt. No. 32. The Court held a hearing on the motions on January 23, 2020. 15 See Dkt. No. 38. For the reasons detailed below, the Court GRANTS IN PART and DENIES IN 16 PART the motion to dismiss and motion to strike. 17 I. BACKGROUND 18 Plaintiff Michelle Bogosian Chose alleges that Defendant exposed patrons of the 19 Claremont Club and Spa in Berkeley, California to “dangerous fragrance” in its lobby, by 20 “showering unsuspecting guests/patrons with substances known to cause respiratory problems, 21 headaches, skin irritation, and gastrointestinal, cardiovascular and cognitive problems.” See Dkt. 22 No. 30 (“SAC”) at ¶¶ 2, 39. Plaintiff alleges that Defendant “piped” these fragrances “in through 23 Claremont’s HVAC system” “without warning, and without ample regard to the short term, long 24 term and/or discriminatory impact upon disabled persons.” See id. at ¶¶ 3, 5, 45–52. According to 25 Plaintiff, studies have shown that such fragrances may contain chemicals derived from toxic 26 petrochemicals and other potential carcinogens. See id. at ¶¶ 3–4, 36–37. Plaintiff also notes that 27 she is particularly sensitive to such fragrances, and when exposed “her throat begins to tighten 1 headaches” and “feelings of nausea” that “continue for many hours.” See, e.g., id. at ¶ 17. 2 Plaintiff alleges that Defendant received complaints about its use of the fragrance and its health 3 effects, but did not discontinue its use at the Claremont. See, e.g., id. at ¶ 52. 4 On the basis of these facts, Plaintiff alleges a cause of action for violation of the American 5 with Disabilities Act (“ADA”), as well as state law claims for negligence; negligent infliction of 6 emotional distress (“NIED”); intentional infliction of emotional distress (“IIED”); violation of the 7 Unruh Civil Rights Act, Cal. Civ. Code §§ 51 et seq.; violation of California Health and Safety 8 Code § 19955(A); and violation of California’s unfair competition law (“UCL”), Cal. Bus. & Prof. 9 Code §§ 17200 et seq. See id. at ¶¶ 53–120. Plaintiff also seeks to certify three California classes: 10  A Personal Injury Class of “[a]ll persons who visited the Claremont Club & Spa 11 between August 28, 2015 and the trial of this matter”; 12  An Injunctive Relief Class of “[a]ll persons who visited the Claremont Club & Spa 13 between August 28, 2015 and the trial of this matter and seek an order enjoining 14 Defendant from releasing fragrances into the air at the Claremont Club & Spa”; and 15  A Punitive Damages Class of “[a]ll persons entitled to compensatory damages as a 16 result of the misconduct of Defendants with respect to the release of toxic fragrance 17 compounds and/or harmful particulate matter at the Claremont Club & Spa between 18 August 28, 2015 and the trial of this matter.” 19 See id. at ¶¶ 6, 18, 28. 20 Defendant moves to dismiss many of Plaintiff’s state law claims under Federal Rule of 21 Civil Procedure 12(b)(6) and to strike the class action allegations and claim for punitive damages 22 under Federal Rule of Civil Procedure 12(f). See Dkt. No. 32. 23 II. LEGAL STANDARD 24 A. Rule 12(b)(6) 25 Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain 26 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A 27 defendant may move to dismiss a complaint for failing to state a claim upon which relief can be 1 complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” 2 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule 3 12(b)(6) motion, a plaintiff need only plead “enough facts to state a claim to relief that is plausible 4 on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible 5 when a plaintiff pleads “factual content that allows the court to draw the reasonable inference that 6 the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 7 In reviewing the plausibility of a complaint, courts “accept factual allegations in the 8 complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” 9 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nevertheless, 10 courts do not “accept as true allegations that are merely conclusory, unwarranted deductions of 11 fact, or unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 12 2008) (quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). Yet even if 13 the court concludes that a 12(b)(6) motion should be granted, the “court should grant leave to 14 amend even if no request to amend the pleading was made, unless it determines that the pleading 15 could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 16 (9th Cir. 2000) (en banc) (quotation omitted). 17 B. Rule 12(f) 18 Federal Rule of Civil Procedure 12(f) authorizes a court to “strike from a pleading an 19 insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. 20 Civ. P. 12. In moving to strike, a party seeks “to avoid the expenditure of time and money that 21 must arise from litigating spurious issues by dispensing with those issues prior to trial.” Sidney- 22 Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). The decision to strike a portion of 23 the pleadings is within the sound discretion of the court. See Nurse v. United States, 226 F.3d 996, 24 1000 (9th Cir. 2000). Nevertheless, in ruling on a motion to strike, a “court[] may not resolve 25 disputed and substantial factual or legal issue[s].” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 26 970, 973 (9th Cir. 2010) (quotation omitted). 27 // 1 III. ANALYSIS 2 A. Motion to Dismiss 3 i. Negligence 4 Defendant first argues that Plaintiff’s negligence claim fails because she has not alleged 5 facts supporting a duty to exercise reasonable care to protect hotel guests from the allegedly toxic 6 fragrances, nor has she alleged that Defendant breached such a duty even assuming one existed. 7 See Dkt. No. 32 at 7–9. Both duty and breach are essential elements of a negligence claim, which 8 requires “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as 9 the proximate or legal cause of the resulting injury.” See Ladd v. County of San Mateo, 12 Cal. 10 4th 913, 917 (Cal. 1996) (quotation omitted). The Court takes each argument in turn. 11 Defendant urges that it has no legal duty of care to its patrons because any harm from its 12 use of fragrances in the lobby is not reasonably foreseeable. “[T]he existence of a duty is a 13 question of law for the court.” Kentucky Fried Chicken of Cal., Inc. v. Superior Court, 14 Cal. 4th 14 814, 819 (Cal. 1997). Under California law, although a business proprietor is not an insurer of a 15 patron’s safety, it does have a duty to protect patrons from reasonably foreseeable harm. See id. at 16 819; see also Howard v. Omni Hotels Mgmt. Corp., 203 Cal. App. 4th 403, 431 (Cal. Ct. App. 17 2012) (“Hotel proprietors have a special relationship with their guests that gives rise to a duty to 18 protect them against unreasonable risk of physical harm.” (quotation omitted)). It is thus well 19 established that “[e]veryone is responsible, not only for the result of his or her willful acts, but also 20 for an injury occasioned to another by his or her want of ordinary care or skill in the management 21 of his or her property or person . . . .” Cal. Civ. Code § 1714. 22 Defendant points to a single sentence in Plaintiff’s complaint, arguing that it is insufficient 23 to allege “on information and belief” that “the risk of harm to Representative Plaintiff and class 24 members was reasonably foreseeable to Defendant and that Defendant knew, or should have 25 known, that releasing compounds known to cause annoyance, emotional distress and/or short- or 26 long-term physical damage would cause harm to Representative Plaintiff and class members.” See 27 Dkt. No. 32 at 7–8 (citing SAC at ¶ 56). Yet Defendant’s argument ignores the rest of Plaintiff’s 1 fragrances, see SAC at ¶ 10, and that during the class period “Defendant received complaints from 2 class members regarding Defendant’s use of fragrance, including their health effects on class 3 members,” see id. at ¶ 52. Plaintiff also alleges that she complained to Defendant during her visit 4 to the Claremont in February 2019, asking Defendant’s employees “to cease the use of fragrance 5 or secure seating for her in an area which was not fragranced.” See id. at ¶¶ 82, 90. Moreover, 6 Plaintiff alleges that the health risks of using such fragrances is well-known, see, e.g., id. at ¶ 37, 7 citing, for example, California’s Office of Environmental Health Hazard Assessment, which 8 maintains a publicly-accessible list of chemicals known to the State to cause cancer or 9 reproductive toxicity under the Safe Drinking Water and Toxic Enforcement Act of 1986 (“Prop 10 65”), see id. at ¶ 4, & n.4; as well as policies promulgated by the Centers for Disease Control and 11 Prevention regarding the risk of using fragranced products in the workplace, see id. at ¶ 42, & 12 n.14. 13 To the extent Defendant suggests that Plaintiff must plead more about Defendant’s 14 knowledge of the possible harm to its patrons, see Dkt. No. 32 at 9, Defendant proffers no legal 15 authority requiring this level of particularly for a negligence claim under Rule 8. Even under Rule 16 9’s heightened pleading standard “the pleader is not required to allege facts that are peculiarly 17 within the opposing party’s knowledge.” See Nayab v. Capital One Bank (USA), N.A., 942 F.3d 18 480, 493–94 (9th Cir. 2019). At least for purposes of the motion to dismiss, Plaintiff has 19 sufficiently alleged the foreseeability of harm—and the existence of a duty to protect patrons— 20 from purportedly toxic fragrances at the Claremont. 21 Similarly, Plaintiff has sufficiently alleged that Defendant breached this duty by 22 “showering unsuspecting guests/patrons with substances known to cause respiratory problems, 23 headaches, skin irritation, and gastrointestinal, cardiovascular and cognitive problems.” See id. at 24 ¶ 2. The complaint explains how at the Claremont, Defendant “aims the[] toxic compounds 25 directly at guests/patrons as they walk through the Claremont’s front door” by dispersing them 26 through the hotel’s HVAC system. See id. at ¶ 47. The Court understands that Defendant 27 disagrees with the existence and foreseeability of any harm from the fragrances it uses, but the 1 litigation. Accepting Plaintiff’s allegations as true, as it must, the Court finds that Plaintiff has 2 alleged sufficient facts for purposes of the motion to dismiss stage. 3 ii. Battery 4 Defendant next contends that Plaintiff’s battery claim fails because she has failed to allege 5 facts supporting the claim that Defendant intended to harm her with the use of fragrances at the 6 hotel. Under California law, battery requires “(1) defendant touched plaintiff, or caused plaintiff 7 to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the 8 touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable 9 person in plaintiff’s position would have been offended by the touching.” So v. Shin, 212 Cal. 10 App. 4th 652, 669 (Cal. Ct. App. 2013), as modified on denial of reh’g (Jan. 28, 2013). Defendant 11 challenges the first element, that the fragrance was disbursed “with the intent to harm or offend 12 plaintiff.” See Dkt. No. 32 at 9–10. Defendant contends that the complaint is devoid of any 13 allegations that it intended to harm its patrons generally or Plaintiff specifically. Indeed, Plaintiff 14 acknowledges in the complaint that fragrances are used “to mask odors such as mold smells,” “to 15 promote a signature scent,” and “to enhance the guest experience.” See SAC at ¶¶ 35, 44, 49–51. 16 In response, Plaintiff suggests that for purposes of her battery claim, she need not allege 17 that Defendant intended to harm Plaintiff. This runs contrary to Plaintiff’s own authorities, which 18 list the first element of battery as “defendant touched plaintiff, or caused plaintiff to be touched, 19 with the intent to harm or offend plaintiff.” See So, 212 Cal. App. 4th at 669 (emphasis added); 20 Restatement (Second) of Torts § 18 (1965) (“An actor is subject to liability to another for battery 21 if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a 22 third person . . . .”). In Austin B. v. Escondido Union School District, the California Court of 23 Appeal clarified that intent to harm is necessary to find a defendant liable for battery unless the 24 touching was itself unlawful. See Austin B. v. Escondido Union Sch. Dist., 149 Cal. App. 4th 860, 25 872–76 (Cal. Ct. App. 2007); accord Judicial Council Of California Civil Jury Instruction 1300 26 (Battery – Essential Factual Elements). Here, Plaintiff has not alleged that the use of fragrance is 27 1 itself unlawful.1 To establish a battery claim in these circumstances, California law requires 2 allegations that Defendant intended to harm her and the other putative class members through it 3 use of fragrances in the lobby. The California Court of Appeal’s opinion in Van Scoy v. Valero is 4 instructive. See Van Scoy v. Valero Oil Co., No. A118435, 2008 WL 4196579, at *2 (Cal. Ct. 5 App. Sept. 15, 2008) (unpublished). There, the plaintiff sued Valero for emitting harmful fumes 6 into the air from its refinery. Id. The court upheld a demurrer to the battery cause of action 7 because the plaintiff had not alleged that the emissions were released with the intent to harm 8 anyone. Id. 9 Plaintiff’s other authorities are simply inapposite. During the hearing, Plaintiff quoted at 10 length the California Court of Appeal opinion in Singer v. Marx. See 144 Cal. App. 2d 637 (Cal. 11 Ct. App. 1956). Yet Singer concerned transferred intent: the evidence indicated that the nine- 12 year-old defendant threw a rock intending to hit one person, but hit the plaintiff instead. See id. at 13 641–43. The defendant thus had the intent to harm someone, and could be held liable for hitting 14 the plaintiff under the theory of transferred intent. And in People v. Puckett, 44 Cal. App. 3d 607, 15 614 (Cal. Ct. App. 1975), the criminal defendant challenged his conviction for criminal assault 16 with intent to commit rape. The court found that pushing on the victim’s front door as she was 17 trying to close it after the defendant had followed her home did not show an intent to rape, but 18 could be deemed an offensive touching for purposes of assault with intent to commit a battery. 19 See id. at 614–15. Puckett does not provide any support for Plaintiff’s theory that she need not 20 allege that Defendant released fragrances in the lobby with the intent to harm its patrons. Because 21 Plaintiff has not alleged that Defendant’s use of fragrances at the Claremont was “with the intent 22 to harm or offend plaintiff,” her battery claim fails. 23 iii. Negligent and Intentional Infliction of Emotional Distress 24 Defendant also contends that Plaintiff has not adequately pleaded NIED or IIED because 25 Plaintiff does not adequately allege that Defendant engaged in “extreme and outrageous conduct” 26 27 1 To the extent Plaintiff suggested during the hearing that the use of fragrance violated Prop 65 1 or that Plaintiff suffered serious or severe emotional distress. 2 Under California law, intentional infliction of emotional distress requires “extreme and 3 outrageous conduct by the defendant with the intention of causing, or reckless disregard of the 4 probability of causing, emotional distress.” See Hughes v. Pair, 46 Cal. 4th 1035, 1050 (Cal. 5 2009) (quotations omitted). “A defendant’s conduct is ‘outrageous’ when it is so extreme as to 6 exceed all bounds of that usually tolerated in a civilized community.” Id. at 1050–51 (quotations 7 omitted). 8 Defendant first contends that Plaintiff fails to allege sufficient facts that Defendant’s use of 9 fragrance constitutes “extreme and outrageous conduct.” Defendant suggests that the use of 10 fragrances may be an annoyance to some, but this does not constitute extreme or outrageous 11 conduct. See Dkt. No. 32 at 11–12. Yet as explained in Section III.A.i. above, the Court is bound 12 to consider the allegations in the complaint. Here, Plaintiff alleges that Defendant “aims [] toxic 13 compounds directly at guests/patrons as they walk through the Claremont’s front door.” See SAC 14 at ¶ 47. Although Plaintiff does not specify the exact compounds in Defendant’s fragrances, she 15 does explain that “fragranced products emit hundreds of volatile organic compounds (VOCs) 16 including asthmagens and hazardous air pollutants.” See id. at ¶ 36. She further alleges that “the 17 most commonly emitted compounds were toxic chiral terpenes (e.g., limonene, alpha-pinene, and 18 beta-pinene),” which “react with ozone in the ambient air to generate secondary hazardous 19 pollutants such as formaldehyde.” Id. According to Plaintiff, patrons of the Claremont have 20 therefore “been exposed, in some way, to chemical substances (including carcinogenic and/or 21 other hazardous air pollutants, and particulate matter).” See id. at ¶¶ 20, 36–37. 22 The Court acknowledges some tension in the complaint with Plaintiff’s theory that 23 Defendant’s fragrances are toxic to its patrons. First, Plaintiff concedes that fragrances are “oft- 24 used in hotels” and “a number of commercial scent dispersion machines (‘SDMs’) are available to 25 produce a particular (sometimes even ‘signature’) scent—which promise to enhance the guest 26 experience.” See, e.g., id. at ¶¶ 35, 44. As already discussed, there is no suggestion that 27 Defendant wants to harm its patrons. Second, Plaintiff suggests that some people have chemical 1 38, 40. An annoyance does not amount to “extreme and outrageous conduct.” Still, the Court is 2 bound by the standard that applies at the motion to dismiss stage and “construe[s] the pleadings in 3 the light most favorable to [Plaintiff as] the nonmoving party.” Manzarek v, 519 F.3d at 1031. 4 Exposing patrons to carcinogenic or toxic substances, if true, could constitute “extreme and 5 outrageous conduct.” And to the extent Defendant suggests that Plaintiff has not alleged that such 6 conduct was directed toward her, see Dkt. No. 32 at 13, Plaintiff has sufficiently alleged that 7 Defendant received complaints about its use of the fragrance and its health effects, including from 8 Plaintiff herself, but has not discontinued its use at the Claremont. See, e.g., id. at ¶¶ 52, 82, 90. 9 Nevertheless, the Court agrees that Plaintiff has not provided sufficient allegations that she 10 suffered “serious” or “severe” emotional distress to support her NIED or IIED claims. California 11 courts have explained that the “‘serious emotional distress’ needed to support an NIED claim is 12 functionally the same as the articulation of ‘severe emotional distress [needed to support an IIED 13 claim].’” See, e.g., Wong v. Jing, 189 Cal. App. 4th 1354, 1378 (Cal. Ct. App. 2010). Both 14 require “emotional distress of such substantial quality or enduring quality that no reasonable 15 [person] in civilized society should be expected to endure it.” Potter v. Firestone Tire & Rubber 16 Co., 6 Cal. 4th 965, 1004 (Cal. 1993) (quotations omitted). The California Supreme Court has 17 cautioned that this is “a high bar.” Hughes, 46 Cal. 4th at 1051 . 18 Here, Plaintiff offers little more than conclusory allegations about the emotional distress 19 she and putative class members have experienced due to their exposure to fragrances in the 20 Claremont lobby. Plaintiff asserts that Defendant’s actions “cause[d] her mental anguish, anxiety, 21 and distress and mental suffering and/or medical, hospital, psychological and related expenses,” 22 but she does not offer any factual support or further explanation of how this emotional distress 23 manifested for her following her visit(s) to the Claremont. See SAC at ¶¶ 71, 76. Instead Plaintiff 24 lists the physical symptoms she and other putative class members “[g]enerally” suffer when 25 exposed to fragrances. See id. at ¶¶ 17–18, 80. The only symptoms that Plaintiff allegedly 26 experienced at or following a visit to the Claremont are “soreness in her throat and neck, 27 excruciating headaches and nausea.” See id. at ¶ 64. Plaintiff does not link these symptoms to any 1 psychological and related expenses.” See id. at ¶¶ 71, 76. There is simply no factual support 2 detailing the “substantial quality or enduring quality” of Plaintiff’s emotional distress and how it 3 was caused by Defendant’s conduct. See Potter, 6 Cal. 4th at 1004 (quotations omitted). 4 Plaintiff’s allegations of NIED and IIED are thus inadequate. 5 iv. Unfair Competition Law 6 Lastly, Defendant contends that Plaintiff’s UCL claim fails because Plaintiff has adequate 7 remedies at law under her other causes of action and has not alleged sufficient facts demonstrating 8 that she is entitled to restitution or injunctive relief. 9 California’s UCL prohibits “unfair competition,” which is defined as any “unlawful, unfair 10 or fraudulent business act or practice . . . .” Cal. Bus. & Prof. Code § 17200. The remedies 11 available under the UCL are limited, as [a] UCL action is equitable in nature” and “damages 12 cannot be recovered.” See Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 1144 13 (Cal. 2003). However, there is no right to equitable relief or an equitable remedy when there is an 14 adequate remedy at law. See, e.g., Prudential Home Mortgage Company v. Superior Court, 66 15 Cal. App. 4th 1236, 1249 (Cal. Ct. App. 1998) (holding that statutory relief under the UCL “is 16 subject to fundamental equitable principles, including inadequacy of the legal remedy.”). 17 In this case, Plaintiff seeks damages under her other causes of action for negligence and 18 violation of the Unruh Civil Rights Act based on the exact same conduct that forms the basis of 19 her UCL claim. See, e.g., SAC at ¶¶ 58, 100. Defendant suggests that such monetary damages are 20 an adequate remedy at law that precludes injunctive relief. See Dkt. No. 32 at 16–17. But 21 Plaintiff has also alleged that she resides within 15 miles of the Claremont; previously visited the 22 hotel; and would do so again if Defendant stopped using fragrances there. See SAC at ¶¶ 15, 83. 23 Although monetary damages may compensate Plaintiff for her prior visits, there is ongoing 24 conduct for the Court to enjoin should Plaintiff prevail on her claims. Moreover, Plaintiff also 25 seeks injunctive relief on behalf of the putative class members who would “wish to re-visit the 26 Claremont if Defendant ceased using fragrance at the Claremont.”2 See id. at ¶¶ 84, 107, 110. 27 1 The Court finds that Plaintiff may therefore seek injunctive relief. 2 Defendant next contends that even if Plaintiff has established that there is not an adequate 3 remedy at law, Plaintiff still has not demonstrated that she is entitled to restitution. As part of her 4 UCL claim Plaintiff seeks “restitution and/or disgorgement of all profits obtained by Defendant 5 through the unfair, unlawful and deceptive business practices.” See SAC at ¶ 110. However, the 6 California Supreme Court has held that “disgorgement of money obtained through an unfair 7 business practice is an available remedy in a representative action only to the extent that it 8 constitutes restitution.” Korea Supply, 29 Cal. 4th at 1149 (emphasis added). The court defines 9 an order for restitution as one “compelling a UCL defendant to return money obtained through an 10 unfair business practice to those persons in interest from whom the property was taken, that is, to 11 persons who had an ownership interest in the property or those claiming through that person.” Id. 12 (quotation omitted). Thus, “[u]nder the UCL, an individual may recover profits unfairly obtained 13 to the extent that these profits represent monies given to the defendant or benefits in which the 14 plaintiff has an ownership interest.” Id. Critically, Plaintiff does not allege that she—or any other 15 members of the putative class—actually paid Defendant any money or otherwise has an ownership 16 interest in money from Defendant such that she is entitled to restitution. The Court therefore 17 grants Defendant’s motion to dismiss Plaintiff’s claim for restitution under the UCL. 18 B. Motion to Strike 19 In addition to its motion to dismiss, Defendant also moves to strike Plaintiff’s class 20 allegations and claim for punitive damages. 21 First, Defendant argues that the putative class is overbroad; not ascertainable; and 22 individual questions predominate because individuals who visited the Claremont may not have 23 any sensitivity to fragrances. Plaintiff’s class definition, “[a]ll persons who visited the Claremont 24 Club & Spa between August 28, 2015 and the trial of this matter,” therefore includes people who 25 suffered no injury. As this Court has previously explained, a growing number of courts generally 26 from the allegations in the complaint. See Cedano–Viera v. Ashcroft, 324 F.3d 1062, 1066, n.5 27 (9th Cir. 2003) (“[W]e decline to consider new issues raised for the first time in a reply brief.”). 1 disfavor motions to strike under Rule 12(f), finding that they “serve little useful purpose in 2 modern federal practice, and are often wielded mainly to cause delay and inflict needless burdens 3 on opposing parties.” See Stiner v. Brookdale Senior Living, Inc., 354 F. Supp. 3d 1046, 1063, n.7 4 (N.D. Cal. 2019) (quoting Inn S.F. Enter., Inc. v. Ninth St. Lodging, LLC, No. 3:16-CV-00599-JD, 5 2016 WL 8469189, at *1 (N.D. Cal. Dec. 19, 2016)). And although district courts have authority 6 to strike class allegations at the motion to dismiss stage, courts generally refrain from doing so 7 because such motions are usually premature before the issue of class certification is before the 8 court. See, e.g., Smith v. Keurig Green Mountain, Inc., 393 F. Supp. 3d 837, 849 (N.D. Cal. 9 2019); Ben & Jerry’s Homemade, Inc., 2011 WL 2111796, at *14–*15; Rosales v. FitFlop USA, 10 LLC, 882 F. Supp. 2d 1168, 1179 (S.D. Cal. 2012). 11 The Court acknowledges and shares Defendant’s concern that there is some tension 12 between Plaintiff’s class claims on the other hand, which are premised on the idea that these 13 fragrances are toxic and thus harm everyone who is exposed to them, and Plaintiff’s ADA and 14 Unruh Civil Rights Act claims on other hand, which are premised on Plaintiff’s particular 15 sensitivity to fragrance. Compare SAC ¶¶ 20, 36–37, 39–40, 55, with ¶¶ 16–18, 38. Nevertheless, 16 in keeping with the general practice of disfavoring motions to strike in this context, the Court finds 17 the class allegations should not be stricken. Plaintiff alleges that the fragrance Defendant uses is 18 toxic to everyone, see SAC at ¶¶ 8. Unless this dispute of fact is resolved in Defendant’s favor, a 19 proposed class of people who visited the Claremont may not be overbroad and would not suffer 20 from ascertainability or predominance issues for that reason, as everyone who visited the hotel 21 would be exposed to—and harmed by—the fragrance in the lobby. Because the motion depends 22 on disputed questions of fact, it is denied at this early stage in the litigation. Class allegations may 23 be addressed at the class certification stage. 24 Second, Defendant also argues that Plaintiff’s claims for punitive damages should be 25 stricken because Plaintiff has not established that Defendant acted with oppression, fraud, or 26 malice. Plaintiff acknowledges that to the extent the Court dismisses her battery, NIED, and IIED 27 claims, she does not have a basis to seek punitive damages. See Dkt. No. 33 at 15. Because the 1 above, the Court strikes Plaintiff's prayer for punitive damages, unless and until Plaintiff 2 adequately pleads a predicate claim. See SAC {ff 27, 65, 77, and Prayer for Relief §| 7. 3 || Iv. CONCLUSION 4 Accordingly, the Court GRANTS IN PART the motion to dismiss Plaintiffs claims for 5 battery, NIED, and ITED, as well as Plaintiff’s claim for restitution under the UCL, but otherwise 6 || DENIES the motion to dismiss. The Court GRANTS IN PART the motion to strike Plaintiffs 7 || claim for putative damages, but otherwise DENIES the motion to strike. The Court understands 8 || Defendant’s misgivings that Plaintiff will be able to amend her complaint to address the 9 || deficiencies identified above. Nevertheless, the Court cannot say at this stage that amending the 10 complaint would be futile.? See Lopez, 203 F.3d at 1130. 11 The Court therefore SETS a case management conference for March 3, 2020, at 2:00 p.m. 12 || The parties should be prepared to discuss the case schedule, including the timing of any amended 5 13 complaint and whether the parties should file dispositive motions before class certification 14 || discovery and briefing. 15 IT ISSO ORDERED. z 16 Dated: 2/14/2020 Aibsepurerd 3, bl ab _ 18 HAYWOOD S. GILLIAM, JR. United States District Judge 19 20 21 22 23 24 25 26 27 28 3 Plaintiff’ s counsel is cautioned to carefully consider the requirements of Rule 11, both factual and legal, in deciding whether to amend the complaint to reallege these claims.