Bogosian Chose v. Accor Management US Inc.

Background

Michelle Bogosian Chose alleged that Accor Hotels & Resorts (Maryland) LLC released fragrance compounds into the lobby of the Claremont Club and Spa in Berkeley, California, through the hotel’s heating and air-conditioning system. She alleged that the fragrances caused or could cause respiratory problems, headaches, skin irritation, nausea, and other health effects, and that the defendant received complaints about the fragrances but continued using them.

Chose asserted claims under the Americans with Disabilities Act and California law for negligence, battery, negligent infliction of emotional distress, intentional infliction of emotional distress, violation of the Unruh Civil Rights Act, violation of California Health and Safety Code section 19955(A), and violation of California’s unfair competition law. She also proposed three California classes involving people who visited the Claremont, people seeking an order stopping the fragrance releases, and people seeking compensatory damages.

The defendant moved to dismiss several claims under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint plausibly states a legal claim. It also moved under Rule 12(f) to strike the class allegations and the request for punitive damages.

Motion to Dismiss

The court held that Chose adequately pleaded negligence at this stage. Under California law, a hotel or other business open to patrons has a duty to protect them from reasonably foreseeable harm. The court found that allegations about the defendant’s knowledge of health risks, complaints from patrons, Chose’s own complaint, and the alleged method of dispersing the fragrances were sufficient to allege foreseeability, duty, and breach.

The court granted the motion to dismiss the battery claim. California battery law required Chose to allege that the defendant caused the contact with intent to harm or offend her. The court found that the complaint did not allege that the defendant intended to harm or offend patrons by using fragrances. The court also rejected Chose’s argument that such intent was unnecessary under the circumstances.

The court granted the motion to dismiss the negligent and intentional infliction of emotional distress claims. Although the allegations that patrons were exposed to toxic or carcinogenic substances could, if true, support extreme and outrageous conduct, the complaint did not provide enough factual detail showing that Chose experienced the serious or severe emotional distress required for either claim. The complaint described physical symptoms such as throat and neck soreness, headaches, and nausea, but did not adequately explain the psychological distress or its substantial or lasting effects.

The court denied the motion to dismiss the unfair competition law claim to the extent it sought injunctive relief. Chose alleged that she had visited the hotel, lived nearby, and would return if the defendant stopped using fragrances there, which was enough at this stage to allege an ongoing practice that could be enjoined. The court granted the motion to dismiss the request for restitution because Chose did not allege that she or proposed class members had paid the defendant money or otherwise had an ownership interest in money held by the defendant.

The conclusion states that the motion to dismiss was granted in part as to the battery, negligent infliction of emotional distress, intentional infliction of emotional distress, and UCL restitution claims, and otherwise denied.

Motion to Strike

The court denied the request to strike the class allegations. It acknowledged the defendant’s argument that the proposed class was too broad because some visitors might not be sensitive to fragrances. But the court found that the request depended on disputed factual questions, including whether the fragrances were toxic to everyone exposed. It concluded that striking the allegations at this early stage would be premature and left class issues for the class-certification stage.

The court granted in part the request to strike the punitive-damages claim. Because the battery, negligent infliction of emotional distress, and intentional infliction of emotional distress claims were dismissed, the court struck the punitive-damages request unless and until Chose adequately pleaded a predicate claim supporting it. The conclusion states that the motion to strike was otherwise denied.

Disposition

Judge Haywood S. Gilliam, Jr. stated that amendment might cure the identified pleading deficiencies and that amendment could not yet be deemed futile. The court therefore granted in part and denied in part both the motion to dismiss and the motion to strike, set a case-management conference for March 3, 2020, and directed the parties to discuss the case schedule, including any amended complaint and further motions.