DocketNumber： Civil No. 09cv2883 AJB
Judges： Battaglia
Filed Date： 10/30/2012
Status： Precedential
Modified Date： 11/7/2024
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Presently before the Court is Defendants, the Welk Group, Inc., Welk Resort Group, Inc., Welk Music Group, Inc., and Soleil Communications, Inc., (collectively, “Defendants”), motion for summary judgment, or in the alternative partial summary judgment.
BACKGROUND
This matter is a brought by Plaintiff Hermenegildo “Jay” Martinez (“Plaintiff’), alleging various causes of action stemming from Defendants failure to abate and disclose the presence of mold at the Welk Resort San Diego (the “Resort”).
At some point during the sales process, Plaintiff asked Welk if the Resort was safe for his son (who previously had cancer and needed a clean environment), and the sales agent assured him the Resort was clean, safe, and well maintained. [See Warren Deck, Ex. 5, pp. 36:20-37:12, 247:25-248:5.] Plaintiff purchased his Platinum Points solely for the purpose of staying at the Welk Resort San Diego, [Martinez Depo., ¶¶ 3-4.], which is located in Escondido, California, and has more than 650 units in three subdivisions: the Lawrence Welk Resort Villas, the Villas on the Green, and the Mountain Villas. [Coogan Deck, ¶ 3.]
During a visit to the Resort in 2009, Plaintiff notified the front desk that his room smelled musty. Welk sent a housekeeper, who cleaned a sink, which apparently fixed the problem. [See id. at 102:9-105:6, 123:7-22.] Plaintiff later went looking for fishing bait in an outside utility closet (thinking it to be a cool, damp location), where he found something that may have been mold, but he could not be certain.
Subsequent to his 2009 stay at the Resort, Plaintiff decided he would never use his points again — either at Welk or any other timeshare resort. Additionally,
LEGAL STANDARD
Summary judgment is properly granted when there is no genuine issue as to any material fact such that the moving party is entitled to judgment as matter of law. Fed.R.Civ.P. 56(c). Entry of summary judgment is appropriate “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s ease, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court shall consider all , admissible affidavits and supplemental documents submitted on a motion for summary judgment. See Connick v. Teachers Ins. and Annuity Ass’n, 784 F.2d 1018, 1020 (9th Cir.1986).
The moving party has the initjal burden of demonstrating that summary judgment is proper. Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). To avoid summary judgment, the nonmovant cannot rest solely on conclusory allegations. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir.1986). Rather, he must present “specific facts showing there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “Finally, if the factual context makes the nonmoving party’s claims implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial.” California Architectural Bldg. Prods, v. Franciscan Ceramics, 818 F.2d 1466, 1468 (9th Cir.1987), cert. denied, 484 U.S. 1006, 108 S.Ct. 698, 98 L.Ed.2d 650 (1988).
The court may not weigh evidence or make credibility determinations on a motion for summary judgment. Quite the opposite, the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505; United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). The nonmovant’s evidence need only be such that a “fair minded jury could return a verdict for [him] on the evidence presented.” Anderson, 477 U.S. at 255, 106 S.Ct. 2505. However, in determining whether the nonmovant has met his burden, the court must consider the evidentiary burden imposed upon him by the applicable substantive law. Id. If the nonmovant’s evidence is “merely colorable, or is not significantly probative,” summary judgment may be granted. Id.
DISCUSSION
• Plaintiffs 4AC alleges five causes of action: (1) breach of contract; (2) breach of fiduciary duty; (3) negligence; (4) private nuisance; (5) unfair competition in violation of California Business and Professions Code § 17200 et seq.; and (6) breach of the implied warranty of habitability. [Doc. No. 128.] Defendants contend they are entitled to summary judgment on all claims because Plaintiff cannot prove he was injured as a result of Defendants’ conduct. Specifically, Defendants argue
I. Breach of Contract
Plaintiffs first cause of action alleges damages stemming from Defendants’ alleged breach of the Purchase and Sale Agreement. Plaintiff contends that because he has satisfied all contractual obligations to Welk, by paying for time-share ownership points and all associated fees, and Defendants breached such contract, by failing to abate and disclose the presence of mold, Defendants are liable for “damages consisting of the cost of repairs and replacement, diminutions in value of the time share ownership points, and other associated costs.” [FAC ¶ 34.] Defendants move for summary judgment alleging that Plaintiff has failed to identify a specific provision of the Purchase and Sale Agreement that has been breached, has not — directly or indirectly — paid for repair or replacement costs at the Resort since 2009, as he has not paid his annual maintenance fees and is currently $1,480.48 in arrears, [Zorens Decl. ¶ 7], and even if Plaintiff was excused from paying his annual fees, and thus excused from performing under the contract, Plaintiff has failed to establish he was injured as a result of Defendants’ conduct.
Specifically, Defendants contend Plaintiff has offered no proof to support his contention that his Platinum Points have diminished in value. In fact, Plaintiff admits that when his Platinum Points “lost value,” he means they lost value to him because he is not using them. [Martinez Depo., pp. 208:23-210:11.] To satisfy their burden under Rule 56, Defendants offer external and internal rating system data showing that Welk Resort San Diego has maintained its premier rating since 2006 when the system was implemented, evidencing that Platinum Point Owners have maintained the same trading power since that time. Under this system, owners of Welk Platinum Points can exchange points for stays at non-Welk properties through a timeshare exchange company called Interval International (II). [Ellis Decl., ¶ 5.]
In response, Plaintiff alleges that his damages are not self-inflicted because “he purchased the points specifically for the purpose of staying at Welk Resorts San Diego ... has no interest in staying at any other locations owned and operated by Welk or using his Platinum Points to stay at other resorts ... and purchased the points specifically because he wanted to stay at a place that was clean, safe and well maintained.” [Martinez Depo., ¶¶ 3-5, 9.] Plaintiff further alleges that even in
In California, “[a] cause of action for breach of contract requires proof of the following elements: (1) existence of the contract; (2) plaintiffs performance or excuse for nonperformance; (3) defendant’s breach; and (4) damages to plaintiff as a result of the breach.” CDF Firefighters v. Maldonado, 158 Cal.App.4th 1226,1239, 70 Cal.Rptr.3d 667 (2008); Oasis West Realty, LLC v. Goldman, 51 Cal.4th 811, 821, 124 Cal.Rptr.3d 256, 250 P.3d 1115 (2011). To satisfy the damages element a plaintiff must show appreciable and actual damage, that are clearly ascertainable in both their nature and origin. See St. Paul Fire and Marine Ins. Co. v. American Dynasty Surplus Lines Ins., 101 Cal.App.4th 1038, 1060, 124 Cal.Rptr.2d 818 (2d Dist.2002) (“An essential element of a claim for breach of contract are damages resulting from the breach.”) (italics omitted); Patent Scaffolding Co. v. William Simpson Const. Co., 256 Cal.App.2d 506, 511, 64 Cal.Rptr. 187 (2d Dist.1967) (“A breach of contract without damage is not actionable.”); Cal. Civ.Code § 3301 (“No damages can be recovered for a breach of contract which are not clearly ascertainable in both their nature and origin.”).
Here, Plaintiff has failed to produce any evidence as to how he has performed all obligations under the contract or is otherwise excused from performing such obligations. Specifically, although Plaintiff alleges in the 4AC that he has paid all fees associated with his ownership of Platinum Points, Plaintiff fails to dispute that he is currently $1,480.48 in arrears for unpaid annual maintenance fees, or offer any evidence that such amounts should be excused. Accordingly, because Plaintiff acknowledged in his 2009 contract that he is “obligated to pay the Welk Resorts Platinum Owners Association annual maintenance assessments ... [and] failure to pay any such assessment may result in the suspension of use privileges,” Plaintiff has failed to establish an essential element of his breach of contract claim.
Nevertheless, even if Plaintiff was excused from performing under the contract, he has failed to allege that he has been damaged as a result of Defendants’ conduct. Specifically, Plaintiff offers no evidence to rebut Defendants’ proof that his Platinum Points currently have the same value on the II exchange market as they did when he first purchased his points in 2007. Additionally, Plaintiff fails to address the depositions of other Resort guests, which state that they enjoy the Resort facilities and believe that the Resort is well maintained. [Ellis Deck, ¶ 6.] Indeed, although more than 130,000 guests stay at the Resort each year, Defendants are aware of fewer then 15 complaints regarding mold in the last 8 years. [See id.] Thus, the only evidence Plaintiff produced in support of his claim that his points decreased in value was his own self-serving testimony as to his personal rea
Furthermore, although Plaintiff cites Sweet v. Johnson, 169 Cal.App.2d 630, 337 P.2d 499, 500 (1959), for the proposition that nominal damages are presumed as a matter of law to flow directly from a breach of contract, such argument was recently rejected by the Ninth Circuit in Ruiz v. Gap, Inc., wherein the Court specifically held that under the Ninth Circuit, “a breach of contract claim requires a showing of appreciable and actual damage.” 380 Fed.Appx. 689, 691, 692 (9th Cir.2010) (rejecting the holding of Sweet v. Johnson.). Therefore, because Plaintiff does not put forth any evidence of actual and appreciable damages, nevertheless rebut Defendants’ evidence of his non-payment of annual maintenance fees, the Court GRANTS Defendants’ motion for summary judgment on Plaintiffs breach of contract claim.
11. Breach of Fiduciary Duty
Plaintiffs second cause of action alleges that Defendants owed him a fiduciary duty as a result of the Purchase and Sale Agreement documents, and Defendants violated this duty when they failed to maintain the Resort.
In the present case, because Plaintiff has failed to allege, nevertheless refute Defendants’ evidence regarding the existence of á fiduciary relationship above and beyond the -contractual relationship between the parties, his breach of fiduciary duty claim necessarily fails.
III. Negligence
Plaintiffs negligence claim alleges Defendants owed a duty to avoid foreseeable damages and refrain from engaging in tortious conduct. Plaintiff maintains Defendants breached this duty by selling time-share ownership points for dwellings that suffered from dangerous leaks, water intrusion, mold, mildew and/or fungus, and failing to maintain and repair those units. [4AC ¶ 43.] Plaintiff further asserts that under California law, “the same act may be both a breach of contract and a tort.” Perry v. Robertson, 201 Cal.App.3d 333, 340, 247 Cal.Rptr. 74 (1988). Accordingly, Plaintiff does not dispute that his negligence claim seeks solely economic damages, but alleges that he should be permitted to go to trial on both his contract and tort causes of action regardless of the lack of economic injury.
Furthermore, Plaintiffs reliance on Perry v. Robertson is misguided. In Perry, the plaintiff asserted both breach of contract claims and tort claims, alleging both economic loss and bodily injury. Therefore, at the conclusion of a jury trial awarding Plaintiff her attorneys’ fees based on the breach of the contract claim, the court stated that plaintiff was not required to elect a remedy prior to the request for attorneys’ fees. Id. at 342-45, 247 Cal.Rptr. 74. Here, however, because Plaintiff asserts recovery for purely economic loss, Perry is inapplicable. See e.g., Atlantic Richfield, Co., 137 Cal.App.4th at 337, 40 Cal.Rptr.3d 313 (“cost of repair does not constitute a physical injury”). Accordingly, the Court GRANTS Defendants’ motion for summary judgment with respect to Plaintiffs negligence claim.
IV. Prívate Nuisance
Plaintiffs fourth cause of action alleges Defendants “by their acts, conduct, failure to act, and/or omissions, created, maintained, exacerbated, and concealed a private nuisance and did not take any reasonable steps to immediately abate the nuisance, although requested to do so.” [4AC ¶ 48.]
California law requires a disturbance of rights in land before a plaintiff may maintain a cause of action for private nuisance. See Birke v. Oakwood Worldwide, 169 Cal.App.4th 1540, 1549, 87 Cal.Rptr.3d 602 (2009); Venuto v. Owens-Corning Fiberglas Corp., 22 Cal.App.3d 116, 99 Cal.Rptr. 350 (1971). As defined by the Restatement Second of Torts, “[a] private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land.”
Here, Defendants assert, and the Court agrees, that Plaintiff has failed to prove an interest in real property and thus his private nuisance claim must fail.
Accordingly, the Court finds Defendants have submitted sufficient evidence to establish that Plaintiffs ownership of Platinum Points do not constitute a real property interest. Therefore, the burden shifts to Plaintiff to assert there is a genuine dispute with respect to the characterization of his interest. However, after searching the record for evidence to support Plaintiffs contentions, the Court finds none, and instead finds additional evidence in support of Defendants’ claim.
V. Unfair Competition in Violation of California Business and Professions Code § 17200 et seq.
California’s UCL prohibits unfair competition by means of any unlawful, unfair or fraudulent business practice. Cal. Bus. & Prof.Code §§ 17200-17210. Because the statute is written in the disjunctive, it prohibits three separate types of unfair competition: (1) unlawful acts or practices, (2) unfair acts or practices, and (3) -fraudulent acts or practices. Cel-Tech, 20 Cal.4th at 180, 83 Cal.Rptr.2d 548, 973 P.2d 527; Kearns v. Ford Motor Co., 567 F.3d 1120, 1127 (9th Cir.2009). Here, Plaintiffs fifth cause of action alleges Defendants violated all three sub-parts of the UCL. [Doc. No. 58, p. 16.] Defendants assert Plaintiffs UCL claim fails for a multitude of reasons, including lack of standing and failure to proffer sufficient evidence to support a violation under the unlawful, unfair, or fraudulent prong.
1. Standing Under the UCL
Defendants first argue Plaintiff lacks standing to sue under the UCL. Specifically, Defendants contend that Plaintiff (1) has not suffered “injury in fact” because he has not experienced any physical
To have standing under the UCL, as amended by Proposition 64, a plaintiff must establish that he has (1) suffered an injury in fact; and (2) lost money or property as a result of the unfair competition. Cal. Bus. & Prof.Code § 17204; Walker v. Geico Gen. Ins. Co., 558 F.3d 1025, 1027 (9th Cir.2009). The “as a result of’ language in Section 17204 requires the plaintiff to show a causal connection between the defendant’s alleged UCL violation and Plaintiffs injury. See Rubio v. Capital One Bank, 613 F.3d 1195, 1204 (9th Cir.2010). “In approving Proposition 64, the California voters declared their intent to prohibit private attorneys from filing lawsuits for unfair competition where they have no client who has been injured in fact under the standing requirements of the United States Constitution.” Buckland v. Threshold Enters., Ltd., 155 Cal.App.4th 798, 814, 66 Cal.Rptr.3d 543 (Cal.Ct.App.2007) (internal quotations omitted). Thus, to plead a UCL claim, a plaintiff must show he has suffered a distinct and palpable injury as a result of the alleged unlawful or unfair conduct. Buckland, 155 Cal.App.4th at 814, 66 Cal.Rptr.3d 543 (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 372, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982)) (internal quotation marks omitted). The requisite injury must be “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Buckland, 155 Cal.App.4th at 814, 66 Cal.Rptr.3d 543 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)) (internal quotation marks omitted).
Cases decided since Proposition 64 have concluded that a plaintiff suffers an injury in fact for purposes of standing under the UCL when he or she has:
(1) Expended money due to the defendant’s acts of unfair competition. See e.g., Aron.v. U-Haul Co. of California (2006) 143 Cal.App.4th 796, 802-803, 49 Cal.Rptr.3d 555 (plaintiff alleged he was required to purchase excess, fuel when returning rental truck); Monarch Plumbing Co. v. Ranger Ins. Co., 2006 WL 2734391 (E.D.Cal., Sept. 25, 2006) (plaintiff alleged he paid higher insurance premiums because of defendant insurer’s settlement policies); Witriol v. LexisNexis Group, 2006 WL 4725713 *6-7 (N.D.Cal., Feb. 10, 2006) (plaintiff incurred costs to monitor and repair damage to his credit caused by defendants’ unauthorized release of private information); Southern Cal. Housing v.*1138 Los Feliz Towers Homeow., 426 F.Supp.2d 1061, 1069 (C.D.Cal.2005) (housing rights center lost financial resources and diverted staff time investigating case against defendants); Laster v. T-Mobile USA, Inc., 407 F,Supp.2d 1181, 1194 (S.D.Cal.2005) (defendants advertised cellular phones as free or substantially discounted when purchased with cellular telephone service, but plaintiffs were required to pay sales tax on the full retail value of the phones);
(2) Lost money or property. See e.g., Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc., 129 Cal.App.4th 1228, 1240, 1262, 29 Cal.Rptr.3d 521 (2005) (plaintiffs home and car were vandalized by animal rights protestors); or
(3) Been denied money to which he or she has a cognizable claim. See e.g., Progressive West Ins. Co. v. Super. Ct., 135 Cal.App.4th 263, 269-270, 285, fn. 5, 37 Cal.Rptr.3d 434 (2005) (insurance company paid insured’s medical bills, then sued to recover that money when insured collected damages from the third party who caused his injuries; insured had standing to bring UCL claim against insurance company); Starr-Gordon v. Mass. Mut. Life Ins. Co. 2006 WL 3218778, *1, *6-7 (E.D.Cal., Nov. 7, 2006) (plaintiff challenged the process by which defendant terminated her disability benefits).22
Therefore, after Kwikset, “plaintiffs who can truthfully allege they were deceived by a product’s label into spending money to purchase the product, and would not have purchased it otherwise, have ‘lost money or property’ within the meaning of Proposition 64 and have standing to sue.” Kwikset, 120 Cal.Rptr.3d 741, 246 P.3d at 881.
Here, the Court finds Plaintiffs claim fails as a matter of law because he has failed to meet the standing requirement under the UCL. Specifically, the Court finds Plaintiffs reliance on Kwikset misguided as the facts and circumstances in Kwikset are distinguishable from the instant case. Whereas the court in Kwikset found that consumers had suffered injury in fact when certain locksets were labeled, “Made in America,” when in fact they were not, here, although Plaintiff alleges that an employee of Welk stated that the Resort was “clean, safe, and well-maintained,” he offers no proof to support the assertion that these statements were in fact false. [Martinez Deck, ¶ 7.] For example, other than his own self-serving declaration, Plaintiffs only proof to support his contention are several emails between Wade Brent, the Chief Engineer of Welk, and Sean Coogan, Welk’s General Manager, wherein the two discussed mold remediation and terminate issues in several units. See e.g., Hansen v. United States, 7 F.3d 137, 138 (9th Cir.1993); United States v. One Parcel of Real Property, 904 F.2d 487, 492 n. 3 (9th Cir.1990) (finding a conclusory, self-serving affidavit, lacking detailed facts and any supporting evidence, is insufficient to create a genuine issue of material fact). However, although Plaintiff offers this email evidence to support' his argument, he fails to refute statements by Sean Coogan, wherein Coogan states that the Resort has from time to time found mildew or mold growth, but upon discovery, takes immediate steps to implement appropriate remedial measures.
Accordingly, unlike in Kwikset, where it was undisputed that all the locksets were not in fact “Made in America,” here, Plaintiff has failed to offer proof that the Resort is not otherwise “clean, safe, and well-maintained,” or that all units at the Resort are infested with mold. Therefore, as Plaintiff is not barred from using his Platinum Points at the Resort or any other non-Welk facility, he has not shown that he has “lost money or profits” within the meaning of Proposition 64. Nevertheless, even if the Court found Plaintiff had standing under the UCL, Plaintiff has failed to produce sufficient evidence to prove Defendants actions were unlawful, fraudulent, or otherwise constituted unfair business practices under the UCL.
2. Unlawful Business Practices
By proscribing “any unlawful” business practices Section 17200 “borrows” violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable. Cel-Tech Commc’ns, Inc. v. Los Angeles Cellular Tel. Co., 20 Cal.4th 163, 83 Cal.Rptr.2d 548, 561, 973 P.2d 527 (1999). Thus a “violation of almost any federal, state, or local law may serve as the basis for a[n] [unfair competition] claim.” Plascencia v. Lending 1st Mortg., 583 F.Supp.2d 1090, 1098 (N.D.Cal.2008) (citing Saunders v. Super. Ct., 27 Cal.App.4th 832, 838-39, 33 Cal.Rptr.2d 438 (1994)). Progressive West Ins. Co. v. Yolo County Super. Ct. (2005) 135 Cal.App.4th 263, 287, 37 Cal.Rptr.3d 434 (“An unlawful business practice under [Business and Professions Code] section 17200 is an act or practice, committed pursuant to business activity, that is at the same time forbidden by law.”) (internal quotations omitted).
Plaintiff alleges that Defendants engaged in “unlawful” conduct by violating: (1) California Civil Code § 2079 (failure of a real estate broker or salesperson to a prospective purchaser of residential real property to conduct a visual inspection of the property offered for sale and to disclose to that prospective purchaser all facts materially affecting the value or desirability of the property); (2) California Civil Code § 1102.6 (failure to provide an accurate and current “Real Estate Transfer Disclosure Statement”); and (3) California Civil Code § 1710 (fraudulently suppressing information about the existence of mold).
3. Fraudulent Business Practices
Plaintiffs allegations under the fraudulent prong fail for similar reasons. To state a claim for fraud under the UCL a plaintiff must show that “reasonable members of the public are likely to be deceived” by the alleged unfair business practice. Rubio v. Capital One Bank, 613 F.3d 1195, 1204 (9th Cir.2010) (internal quotations omitted).
“[I]n order to be deceived, members of the public, must have had an expectation or an assumption about” the matter at hand. Bardin v. Daimlerchrysler Corp., 136 Cal.App.4th 1255, 39 Cal.Rptr.3d 634, 639-48 (2006). Although “surveys and expert testimony regarding consumer assumptions and expectations may be offered,” they are not required. Nevertheless, isolated examples of actual deception are insufficient to state a claim under the UCL’s fraudulent prong. See Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1026 (9th Cir.2008). Moreover, where a plaintiff alleges that the defendant failed to disclose material facts, the plaintiff must first establish that the defendant had a duty to disclose those facts. Berryman v. Merit Prop. Mgmt., Inc., 152 Cal.App.4th 1544, 1557, 62 Cal.Rptr.3d 177 (2007) (“Absent a duty to disclose, the failure to do so does not support a claim under the fraudulent prong of the UCL.”).
Here, Plaintiff alleges Defendants violated the fraudulent prong by failing to disclosure to consumers that time-share dwellings at the Resort suffered from dangerous leaks, water intrusion, mold, mildew, and/or fungus; failed to truthfully respond to inquiries by time-share point owners regarding the condition of the resort; and disseminated false and misleading statements regarding the condition of time-share dwellings. (Doc. No. 58, p. 16:19-28-17:1-3.) Moreover, Plaintiff al
Although Plaintiff does not need to present evidence that he was “actually deceived” by Defendants conduct, to prevail, Plaintiff must produce evidence showing “a likelihood of confounding an appreciable number of reasonably prudent purchasers exercising ordinary care.” See Clemens, 534 F.3d 1017 at 1026. Plaintiff has failed to met this burden. For example, similar to Daugherty v. American Honda Motor Company, 144 Cal.App.4th 824, 830, 51 Cal.Rptr.3d 118 (2006), wherein the California Court of Appeal found the public was not likely to be deceived because “[t]he only expectation buyers could have had about [a particular] engine was that it would function properly for the length of [the manufacturer]’s express warranty,” here, the only expectation buyers of Platinum Points could have had with respect to the maintenance and cleanliness of the Resort, even taking into account Defendants’ representations, was that its would be clean, safe, and well maintained. Thus, even though Defendants may have assumed a duty to Plaintiff by voluntarily responding to his inquiries regarding the maintenance and suitability of the Resort for his son, aside from Plaintiffs bare allegations, he has produced no evidence to suggest that a reasonable consumer would have expected or assumed that the entire Resort was, and has always been, free of any mold, mildew, or water intrusion. See e.g., In re Sony Grand Wega KDF-E A10/A20 Series Rear Projection HDTV Tel. Litig., 758 F.Supp.2d 1077, 1089 (S.D.Cal.2010) (dismissing plaintiffs claims for failing to allege actual misstatements about “absolute characteristics of the televisions”). This is only further compounded by the fact that Plaintiff has not shown that Defendants made “affirmative misrepresentations” as to the safety and maintenance of the Resort. Accordingly, the Court GRANTS Defendants’ motion for summary judgment under the fraudulent prong.
4. Unfair Business Practices
Unfair business practices are not defined under the UCL. Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152, 1169 (9th Cir.2012). Accordingly, there are two opposing lines of California appellate court opinions defining what constitutes an “unfair” business practices for purposes of the UCL. See, e.g., Morgan v. Harmonix Music Sys., Inc., 2009 WL 2031765, at *4 (N.D.Cal. July 7, 2009) (noting the split in authority); Bardin v. Daimlerchrysler Corp., 136 Cal.App.4th 1255, 39 Cal.Rptr.3d 634, 639-48 (Ct.App.2006) (same). “One line defines ‘unfair’ as prohibiting conduct that is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers and requires the court to weigh the utility of the defendant’s conduct against the gravity of the harm to the alleged victim.” Id. (citing Smith v. State Farm Mut. Auto. Ins. Co., 93 Cal.App.4th 700, 113 Cal.Rptr.2d 399, 415 (Ct.App.2001)). “The other line of cases holds that the public policy which is a predicate to a consumer unfair competition action under the ‘unfair’ prong of. the UCL must be tethered to specific constitutional, statutory, or regulatory'provisions.” Bardin, 39 Cal.Rptr.3d at 636 (citing Scripps Clinic v. Super. Ct., 108 Cal.App.4th 917, 134 Cal.Rptr.2d 101, 116 (2003)).
VI. Breach of the Implied Warranty of Habitability
Plaintiffs sixth cause of action alleges Defendants breached the implied warranty of habitability by (1) allowing water to intrude into the time-share dwellings and Resort; (2) failing to repair, in a timely and reasonable manner, the defective conditions in and around the timeshare dwellings and the Resort; (3) failing to abate the mold, mildew and/or fungus throughout the time-share dwellings and Resort; and, (4) failing to notify Plaintiff of the presence of mold, mildew and/or fungus and the health risks associated with such conditions.
“There is a common law implied warranty of habitability in residential leases in California ...” Fairchild v. Park, 90 Cal.App.4th 919, 924, 109 Cal.Rptr.2d 442 (2001) (quoting Green v. Superior Court, 10 Cal.3d 616, 619, 111 Cal.Rptr. 704, 517 P.2d 1168 (1974)). Accordingly, a landlord has a “duty to maintain leased premises in a habitable condition during the term of the lease.” Green, 10 Cal.3d at 623, 111 Cal.Rptr. 704, 517 P.2d 1168. Violations of the implied warranty of habitability are tethered to violations of the state’s housing codes. See Green, 10 Cal.3d at 637, 111 Cal.Rptr. at 719, 517 P.2d 1168. Accordingly, “substantial compliance with applicable building and housing code standards, which materially affect health and safety, will suffice to meet the landlord’s obligations under the common law implied warranty of habitability.” Id.
Here, however, because Plaintiff has failed to present any evidence to rebut Defendants’ argument that Plaintiffs Platinum Points are not in the nature of a lease, as they do not constitute an interest in real property, the Court finds .Plaintiff has failed to present a genuine dispute. See Fairchild, 90 Cal.App.4th at 924, 109 Cal.Rptr.2d 442 (holding the implied warranty is implied in all residential leases in
CONCLUSION
For the reasons set forth above, the Court GRANTS Defendants’ Motion for Summary Judgment in its entirety. The Clerk of the Court is instructed to enter judgment accordingly.
IT IS SO ORDERED.
. Defendants also requested that the Court take judicial notice of the Legislative History of the Vacation Ownership and Time-Share Act of 2004, Cal. Bus. & Prof.Code § 11211 et seq. See 2004 Cal. Legis. Serv. Ch. 697 (A.B. 2252) § 14, effective July 15, 2005. Under Federal Rule of Evidence 201(b), a court may take judicial notice of facts that are “(1) generally known within the trial court's territorial jurisdiction; or (2) whose accuracy cannot be easily questioned.” This includes matters of public record and legislative history of state statute. See Getty Petroleum Marketing, Inc. v. Capital Terminal Co., 391 F.3d 312, 320 (1st Cir.2004); Chaker v. Crogan, 428 F.3d 1215, 1223 (9th Cir.2005). Accordingly, the Court grants Defendants’ request for judicial notice.
. The Court issued this supplemental briefing schedule to fairly adjudicate all claims before the Court. Accordingly, the motion hearing scheduled for October 5, 2012 was vacated.
. This action was originally filed as a class action on .December 23, 2009. [Doc. No. 1.] However, on July 13, 2012, 2012 WL 2888536, the Court denied Plaintiff’s motion to certify the class. [Doc. No. 139.] Only Plaintiff’s individual claims against all Defendants remain.
. Prior to Defendants instant motion for summary judgment, Defendants moved to dismiss and strike portions of Plaintiff’s Third Amended Complaint (''3AC”) and Plaintiff’s Fourth Amended Complaint (“4AC”). The Court granted in part and denied in part Defendants' motion to dismiss and motion to strike Plaintiff’s 3AC, [Doc. No. 57], and granted Defendants’ motion to strike and denied defendants’ motion to dismiss Plaintiff’s 4AC, [Doc. No. 70.]
. Defendants have been active in the vacation resort ownership business since 1984, and have resorts in Maui, Hawaii; Palm Desert, California; Branson, Missouri; Cabo San Lucas, Mexico, and a “flagship property” at the Welk Resort San Diego in Escondido, California. [Doc. No. 58 at 9.]
. In any event, the closet was not part of the Resort’s living spaces. (See id. at 110:4-113:5; Exh. 2, p. 12:3-5.)
. In order to participate in the II Exchange Program, the Owner Services department at a Welk Resort department converts Platinum Points into exchange weeks. [Id.] The weeks are then deposited by Owner Services with the II Exchange Program. [Id.]
. Defendant contends Plaintiff's damages are self-inflicted because Plaintiff has decided not to use his Platinum Points "at the Welk Resort or any number of thousands of spectacular timeshare resorts around the world.” (emphasis in original) [Doc. No. 128, 6:18-21.]
. Plaintiff’s Declaration states that "he was completely unaware” that he is currently $1,480.48 in arrears, and has not received any correspondence from Defendants regarding delinquent annual maintenance fees. [Martinez Dec!., ¶ 10.] Although the Court need not consider Plaintiff’s assertion under Rule 56(c)(3), because it was not cited to in Plaintiff’s moving papers, Plaintiff's assertion is nevertheless unpersuasive because it provides no basis to excuse Plaintiff from his contractual obligations.
., Even more so, Plaintiff states that “my family and I have refused to visit or stay at Welk Resort San Diego and will continue to refuse to visit or stay at Welk Resort San Diego.” [Martinez Decl. ¶ 7.]
. The Purchase and Sale Agreements provided that Defendants would maintain "[a] fiduciary duty of utmost care, integrity, honesty, and loyalty" in their dealings with purchasers of real estate, provide "diligent exercise of reasonable skill and care in performance of the agent’s duties;” uphold “a duty of honest and fair dealing and good faith;” and fulfill their "duty to disclose all facts known to the agent materially affecting the value or desirability of the property that are not known to, or within the diligent attention and observation of, the parties.”
. However, as the Court noted in its previous Order denying class certification, the 2007 contract was superseded by the 2009 contract when Plaintiff purchases additional Platinum Points. [Doc. No. 139, 5.]
. Plaintiff also asserts in his opposition, while not in his 4AC, that Defendants breached their fiduciary duties by not advising Plaintiff of the serious water intrusion, mold, mildew and fungus issues at the Welk Resort San Diego. [Doc. No. 140, 11:13-16.] However, because Plaintiff did not raise these issues in the 4AC, he may not now raise such arguments. See Wasco Prods., Inc. v. Southwall Tech., 435 F.3d 989, 992 (9th Cir.2006) ("summary judgment is not a procedural second chance to flesh out inadequate pleadings”)
. To survive a motion for summary judgment, once the moving party has satisfied its initial burden of production, the burden of proof shifts to the nonmovant to show that there is a genuine issue of material fact. Celotex, 477 U.S. at 331, 106 S.Ct. 2548. Here, Plaintiff has failed to establish why the contractual provisions create a fiduciary duty.
. California nuisance law follows the Restatement approach to private nuisance. See San Diego Gas & Elec. Co. v. Super. Ct., 13 Cal.4th 893, 55 Cal.Rptr.2d 724, 920 P.2d 669, 696-97 (1996).
. See Trinkle v. Cal. State Lottery, 71 Cal.App.4th 1198, 84 Cal.Rptr.2d 496, 500 (1999) (rejecting private nuisance claim where plaintiff owned vending machines installed in third-party business establishments but had no interest in the real property of those businesses).
. Defendants also provided the Court with the Legislative history to the Vacation and Ownership Act of 2004, wherein the Legislature amended California Business and Professions Code section 11004.5, to state that "time-share plans ... are not subdivisions or subdivided lands subject to this chapter.” (internal quotations omitted).
. In pertinent part, the Court's previous order stated, "In light of the Judge Anello's previous order denying Defendant's motion to dismiss Plaintiff's fourth cause of action for private nuisance [Doc. No. 57 at 11], and the fact that Plaintiff did not solely allege a personal property interest consisting only of points in the 4AC [Doc. No. 58 at 7; Doc. No. 62 at 6-7], as Defendant contends [Doc. No. 61 at 5], the 4AC still alleges enough facts to survive a motion to dismiss.” (emphasis added)
. The moving party has the initial burden of production for showing the absence of any material fact. Celotex, 477 U.S. at 331, 106 S.Ct. 2548. The moving party can satisfy this burden in two ways, "(1) by submit affirmative evidence that negates an essential element of the nonmoving party's claim, or (2) demonstrating to the Court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party’s claim.” Id. Once the moving party has satisfied its initial burden of production, the burden of proof shifts to the nonmovant to show that there is a genuine issue of material fact. Id.
. Plaintiffs own. deposition testimony acknowledges that his time-share interest is not his personal property because he can’t do what he wants with it, as he has to share time with other people. [Martinez Depo., 221:1-17.] Moreover, attached to Plaintiff’s moving papers is the Public Report, whereby it specifically states Plaintiff did not receive an interest in real property. These materials could not properly be considered by the Court at the motion to dismiss stage.
. Plaintiff's own deposition testimony, which was not refuted in Plaintiff’s moving papers, states that Plaintiff enjoyed his room, and although he did complain about a "musty” smell, he never requested to change rooms. [Martinez Depo., 98-105.] Plaintiff’s only evidence in support of his claim is that "[following our stay at Welk Resort San Diego in 2009 and our discovery of the mold issues at the Welk Resort San Diego property, my family and I have refused to visit or stay at Welk Resort San Diego and will continue to refuse to visit or stay at Welk Resort San Diego.” [Martinez Depo., ¶ 7.] Because such evidence is “merely colorable, [and] is not significantly probative,” summary judgment is appropriate. Anderson, 477 U.S. at 255, 106 S.Ct. 2505.
. See Hall v. Time, 158 Cal.App.4th 847, 854-55, 70 Cal.Rptr.3d 466 (2008) (cataloging cases discussing standing under the UCL after Proposition 64).
. Coogan also states that mold or mildew growth is common in buildings with bathrooms and kitchens. [Coogan Deck, ¶ 9.] ,
. Plaintiff's 4AC originally contained a violation of California Civil Code Section 1929. However, the Court granted Defendants' motion to strike as to that violation. [Doc. No. 70.]
. Plaintiff did not refute the non-application of sections 2079 and 1102.6. [Doc. No. 140, pp. 15-16.]
. Plaintiff did not oppose Defendants assertion that section 1710 could not be a basis of UCL liability under the unlawful prong.
. Fraud under Section 17200 does not refer to the common law tort of fraud, but only requires a showing that members of the public "are likely to be deceived.” Puentes v. Wells Fargo Home Mortg., Inc., 160 Cal.App.4th 638, 72 Cal.Rptr.3d 903, 909 (2008). "This distinction reflects the UCL’s focus on the defendant’s conduct, rather than the plaintiff’s damages, in service of the statute’s larger purpose of protecting the general public against unscrupulous business practices." Morgan v. AT & T Wireless Servs., Inc., 177 Cal.App.4th 1235, 1255, 99 Cal.Rptr.3d 768 (2009).
. Nevertheless, claims arising under the UCL’s fraudulent prong must be pleaded with particularity under Rule 9(b). Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir.2009); Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir.2007) (stating that a plaintiff "must include a description of the time, place, and specific content of the false representations as well as the parties to the misrepresentations”).
. In addition to the common law implied warranty of habitability, a landlord has a “statutory obligation under California Civil Code Section 1941, to keep residential property in a condition fit for [human] occupation, and repair all subsequent dilapidations therefore.’’ Fairchild, 90 Cal.App.4th at 925, 109 Cal.Rptr.2d 442 (quoting Cal. Civ.Code § 1941). Plaintiff has also alleged violation of Section 1941.