Opinion
D069562
12-22-2016
LINDSEY MARIE HANSEN, Plaintiff and Appellant, v. CALIFORNIA SUITES HOTEL et al., Defendants and Respondents.
Lakeshore Law Center and Jeffrey Wilens for Plaintiff and Appellant. Slaughter, Reagan & Cole and William M. Slaughter, Gabriele M. Lashly, Jonathan D. Marshall for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2014-00022185-CU-BT-CTL) APPEAL from an order of the Superior Court of San Diego County, Joan M. Lewis, Judge. Reversed and remanded with directions. Lakeshore Law Center and Jeffrey Wilens for Plaintiff and Appellant. Slaughter, Reagan & Cole and William M. Slaughter, Gabriele M. Lashly, Jonathan D. Marshall for Defendants and Respondents.
Plaintiff and appellant Lindsey Marie Hansen, on behalf of herself and a proposed class of certain occupants of California Suites Hotel (Hotel), appeals from an order denying her motion to certify a class of persons subjected to Hotel's requirement that guests move out or check out and register every 28 days, which Hansen alleged was a violation of Civil Code section 1940.1. The trial court denied Hansen's motion, ruling she had not established numerosity; specifically, she had not proven any person other than herself was " 'required to move out or check out and reregister before the expiration of 30 consecutive days of occupancy' during the relevant time period." Hansen contends the court erred because (1) there was substantial evidence that numerous residents were subjected to Hotel's policy requiring them to move out every 28 days; and (2) the court misapplied the law, which focuses on the intent of the property owner, not the resident, and improperly reached the merits of the lawsuit.
Defendants and respondents are California Suites Hotel doing business as San Diego California Lodge, LLC; E Tse Lin; Jen Tao Lin; Ing Tao Lin; and Ing Wen Huang.
Statutory references are to the Civil Code unless otherwise specified.
We agree that the trial court's ruling is not supported by the evidence and its evidentiary conclusions were an abuse of discretion. We reverse the order and remand with directions that the court enter a new order granting class certification.
FACTUAL AND PROCEDURAL BACKGROUND
Hotel is a 184-room hotel located in the Clairemont area of San Diego. It offers day-to-day bookings in addition to weekly rentals and longer term month-to-month stays. Guests who enter into week-to-week agreements may extend their stay for up to a total of four weeks or 28 days. Hotel's policy is that any guest who wants to stay longer than four weeks must become a month-to-month guest and sign a month-to-month agreement. In order to be eligible to enter into a month-to-month tenancy, guests must submit to and pass a credit check. Hotel's website informed potential guests that "[o]nly 4 consecutive weekly rentals are allowed, at which time a monthly agreement must be completed or guests are REQUIRED to check out/vacate the property for (at least) 32 days."
In July 2014, Hansen filed a complaint on behalf of herself and a class of similarly situated persons, alleging causes of action for violations of sections 1940.1 and 52.1, as well as for unfair competition under Business and Professions Code section 17200. She alleged she was a member of a class of Hotel residents who within a specified time from the complaint's filing were required to move out or to check out and register before the expiration of 30 consecutive days of occupancy. Hansen alleged the class included at least 100 persons who paid a membership fee to Hotel during the class period. According to Hansen, her and the class members' claims involved similar common questions of law and fact that predominated over questions affecting individual class members "in that all class members signed contracts and/or invoices specifying that occupants are required to check out every 28 days and/or were told by Defendants' managers that they . . . could not stay longer than 28 days without checking out and then could reregister for another 28[-]day period . . . ." She alleged Hotel's official policy was to prohibit any occupant from staying more than 28 days so as to prevent them from becoming a tenant, which would entitle them to certain consumer and legal protections.
Hansen moved to certify a class of "[a]ll persons who resided at [Hotel] for at least 14 consecutive days between July 7, 2011[,] and the current date and who were required to move out or check out and reregister before the expiration of 30 consecutive days of occupancy." She argued that section 1940.1 imposed liability if a guest was required to check out before 30 days or to move out if one of the hotel's purposes or motives was to prevent them from becoming a tenant. She pointed out that Hotel's official policy was that all occupants depart by day 28 unless they were granted a month-to-month lease, but to allow them to return and resume occupancy for another four weeks after departure. Hansen submitted a declaration stating that she had been living at Hotel since November 2012 off and on as her primary residence, but due to Hotel's policy prohibiting stays beyond 28 days she was prevented from residing there on a permanent basis and was denied a month-to-month agreement due to her poor credit history. She averred that each time she started occupancy she was required to sign a week-to-week agreement. Most recently, she had signed a week-to-week agreement in April 2014 and sought to live at Hotel through August 2014, and her available documents showed she checked in May 17, 2014, and was required to check out June 13, 2014, was permitted to check back in on June 14, 2014, but left on June 28, 2014, because she was going to be forced out in two weeks. The week-to-week agreement presented to Hansen in June and July 2014 provided in part: "California Suites Hotel rents on a week to week basis. The rooms are rented in blocks of seven (7) consecutive nights. Guests staying weekly can not [sic] stay past four consecutive weeks (28 days) without a credit check being done prior to the check in date."
Hansen's counsel, Jeffrey Wilens, submitted a declaration explaining that Hotel advertised that it rents rooms to tenants on a month-to-month basis, and its website included Hotel's 28-day occupancy limit. He stated that the parties had agreed to informal discovery pertaining to a sampling of Hotel occupancies for the year 2014, and he attached an occupant spreadsheet for that year; a summary of each guest from January 1, 2014, showing their check-in and check-out dates; and a list of persons whose stay was 14 to 28 days. According to Wilens, Hotel qualified as a residential hotel; he stated that approximately 63 of the guest rooms were used by full-time residents, most of whom had a month-to-month contract. He also pointed out that one document identified 95 incidents where someone checked in, stayed 21 to 28 days, then checked out or moved out, and another showed 271 incidents when someone checked in, stayed 14 to 20 days, then checked out or moved out. Wilens stated: "With over 360 documented violations in just a one[-]year period of time, it is reasonable to project there are at least 60 class members and probably over 100."
In opposition, Hotel did not object to any of Hansen's evidence. It argued that section 1940.1 was inapplicable to it for several reasons. It claimed the statute applied only to guests who actually continue to occupy a room after 30 days, and transient guests were excluded from its protections. According to Hotel, Hansen's proposed class was "grossly overbroad" (underlying omitted) and nearly entirely composed of persons without standing: guests who checked out of Hotel within 30 days and did not check back in, which according to Hotel were transient. It further argued all of the class members fell within another exception for persons having occupancy " 'where the innkeeper retains a right of access to and control of the dwelling unit,' " and provides specified amenities. Additionally, Hotel argued it was not a "residential hotel" as defined by section 1940.1 and Health and Safety Code section 50519, subdivision (b)(1), as it was primarily used by transient guests. Hotel asked that the case be dismissed at the certification stage as Hansen's class members were prohibited from asserting section 1940.1 protections against it and had no cognizable claims or any "realistic chance of recovery."
Health and Safety Code section 50519 provides: " 'Residential hotel' means any building containing six or more guestrooms or efficiency units, as defined by [Health and Safety Code s]ection 17958.1, intended or designed to be used, or which are used, rented, or hired out, to be occupied, or which are occupied, for sleeping purposes by guests, which is also the primary residence of those guests, but does not mean any building containing six or more guestrooms or efficiency units, as defined by [Health and Safety Code s]ection 17958.1, which is primarily used by transient guests who do not occupy that building as their primary residence." (Health & Saf. Code, § 50519, subd. (b)(1).)
Hotel also presented a declaration from its general manager, who did not contradict Wilens in any material respect, but in fact confirmed Hotel's policy. She stated: "Although most guests book rooms for less than a week, some transient guests enter into a 'week-to-week' agreement that may be extended up to a total of four weeks." She stated that the week-to-week option was intended for guests who intend to remain at the hotel for less than one month, and those who wished to remain longer had to pass a credit check to be eligible for a month-to-month agreement. According to Hotel's general manager, Hotel's records showed there was no month in 2014 in which month-to-month guests contributed more than 40 percent of Hotel's total revenue.
Based in part on these arguments, Hotel maintained that Hansen had not met her burden of meeting class certification requirements: the proposed class plaintiffs had no recourse under the statute and thus could not be certified; Hansen's proposed class was insufficiently numerous; Hansen had not shown a well-defined community of interest; and a class action would not serve any party's interests.
As to numerosity, Hotel argued: "Hansen claims that her class contains 'at least 44 persons and probably hundreds of persons.' . . . However, most, if not all, of these purported class members are transients not entitled to the protections of [section 1940.1]. Hansen has not identified a class of guests who (1) stayed at the hotel longer than thirty days, (2) did not become month-to-month guests, and (3) were required to move rooms or check-out and re-register. To the extent that any such individuals could possibly be identified (which defendant does not concede), the number of guests falling into this definition would be far too small to justify class certification. In any event, Hansen has not identified these individuals and has not satisfied her burden of establishing sufficient numerosity to justify class treatment." (Emphasis omitted.)
The superior court denied class certification, pointing out in a written order that Hansen bore the burden of establishing the required element that the class be "numerous" in size, and that she had cited to her own declaration as well as that of her attorney, who reviewed the spreadsheets and other documents. It found Hansen failed to meet her burden as to that element: "[Hansen's] declaration and her counsel's calculations and speculations as to the number of class members are insufficient. Other than [Hansen's] declaration[,] there is no evidence that anyone other than [Hansen] was 'required to move out or to check out and reregister before the expiration of 30 consecutive days of occupancy' during the relevant time period."
Hansen filed this appeal.
DISCUSSION
I. Legal Principles Pertaining to Class Certification and Standard of Review
A class action is authorized "when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court . . . ." (Code Civ. Proc., § 382; Hendershot v. Ready to Roll Transportation, Inc. (2014) 228 Cal.App.4th 1213, 1221.) The California Supreme Court has "articulated clear requirements for the certification of a class. The party advocating class treatment must demonstrate the existence of an ascertainable and sufficiently numerous class, a well-defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives." (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021 (Brinker); Dailey v. Sears, Roebuck and Co. (2013) 214 Cal.App.4th 974, 988.) "[I]n light of the general character of Code of Civil Procedure section 382 which fails to define a procedural framework for class certification, the courts have sought guidance from both Civil Code section 1781 regarding consumer class actions and the Federal Rules of Civil Procedure, rule 23, in the absence of state precedent." (Reyes v. San Diego County Bd. of Supervisors (1987) 196 Cal.App.3d 1263, 1270-1271; see also Hendershot, at p. 1222, fn. 5.)
As for numerosity, "[t]o be certified, a class must be 'numerous' in size such that 'it is impracticable to bring them all before the court . . . .' [Citation.] 'The requirement of Code of Civil Procedure section 382 that there be "many" parties to a class action suit is indefinite and has been construed liberally. . . . No set number is required as a matter of law for the maintenance of a class action. [Citation.] Thus, our Supreme Court has upheld a class representing the 10 beneficiaries of a trust in an action for removal of the trustees.' " (Hendershot v. Ready to Roll Transportation, Inc., supra, 228 Cal.App.4th at p. 1222.) " 'The ultimate issue in evaluating [numerosity] is whether the class is too large to make joinder practicable . . . .' [Citation.] ' "[I]mpracticality" does not mean "impossibility," but only the difficulty or inconvenience of joining all members of the class. [Citation.]' [Citation.] 'The numerosity requirement requires examination of the specific facts of each case and imposes no absolute limitations.' [Citation.] 'In addition to the size of the class, the court may also consider the nature of the action, the size of the individual claims, the inconvenience of trying individual suits, and any other factor relevant to the practicability of joining all the putative class members.' " (Ibid.) In short, the court is entitled to consider the totality of the evidence in determining whether there is a sufficiently numerous class. (Soderstedt v. CBIZ Southern California, LLC (2011) 197 Cal.App.4th 133, 154.)
" 'A motion to certify a class action is not a trial on the merits, nor does it function as a motion for summary judgment.' " (Alberts v. Aurora Behavioral Health Care (2015) 241 Cal.App.4th 388, 397.) " 'The certification question is "essentially a procedural one that does not ask whether an action is legally or factually meritorious." ' [Citations.] A class certification motion is not a license for a free-floating inquiry into the validity of the complaint's allegations; rather, resolution of disputes over the merits of a case generally must be postponed until after class certification has been decided [citation], with the court assuming for purposes of the certification motion that any claims have merit." (Brinker, supra, 53 Cal.4th at p. 1023.)
It is only where " 'issues affecting the merits of a case [are] enmeshed with class action requirements' " that a court may pass upon them. (Brinker, supra, 53 Cal.4th at pp. 1023-1024.) "When evidence or legal issues germane to the certification question bear as well on aspects of the merits, a court may properly evaluate them. [Citations.] The rule is that a court may 'consider[ ] how various claims and defenses relate and may affect the course of the litigation' even though such 'considerations . . . may overlap the case's merits.' " (Ibid.) "[A]ny 'peek' a court takes into the merits at the certification stage must 'be limited to those aspects of the merits that affect the decisions essential' to class certification." (Id. at p. 1024.) The California Supreme Court in Brinker stated: "It is far better from a fairness perspective to determine class certification independent of threshold questions disposing of the merits, and thus permit defendants who prevail on those merits, equally with those who lose on the merits, to obtain the preclusive benefits of such victories against an entire class and not just a named plaintiff." (Id. at p. 1034.)
Our review of an order denying class certification differs from ordinary appellate review. (Tellez v. Rich Voss Trucking, Inc. (2015) 240 Cal.App.4th 1052, 1062; Cochran v. Schwan's Home Service, Inc. (2014) 228 Cal.App.4th 1137, 1143; Hendershot v. Ready to Roll Transportation, Inc., supra, 228 Cal.App.4th at p. 1221.) "We review the trial court's actual reasons for granting or denying certification; if they are erroneous, we must reverse, whether or not other reasons not relied upon might have supported the ruling." (Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 530; see also Dailey v. Sears, Roebuck & Co., supra, 214 Cal.App.4th at p. 986 [reviewing court " 'consider[s] only the reasons given by the trial court for the denial, and ignore any other grounds that might support denial' "]; Cruz v. Sun World International, Inc. (2015) 243 Cal.App.4th 367, 375.) Additionally, our inquiry "is narrowly circumscribed. 'The decision to certify a class rests squarely within the discretion of the trial court, and we afford that decision great deference on appeal, reversing only for a manifest abuse of discretion: "Because trial courts are ideally situated to evaluate the efficiencies and practicalities of permitting group action, they are afforded great discretion in granting or denying certification." [Citation.] A certification order generally will not be disturbed unless (1) it is unsupported by substantial evidence, (2) it rests on improper criteria, or (3) it rests on erroneous legal assumptions.' " (Brinker, supra, 53 Cal.4th at p. 1022.) " ' "[I]f the trial court failed to follow the correct legal analysis . . . , 'an appellate court is required to reverse . . . "even though there may be substantial evidence to support the court's order." ' " ' " (Marler v. E.M. Johansing, LLC (2011) 199 Cal.App.4th 1450, 1459.)
II. Section 1940.1 Protections
As background, we briefly review the law underlying Hansen's section 1940.1 claim. We only consider the merits of that law's application to the extent it affects the trial court's numerosity decision, which was the sole ground for denial of class certification. (Accord, Brinker, supra, 53 Cal.4th at pp. 1024-1025; Hendershot v. Ready to Roll Transportation, Inc., supra, 228 Cal.App.4th at p. 1223.)
Title 5, chapter 2 of the Civil Code grants certain statutory rights to tenants, and applies broadly to "all persons who hire dwelling units located within this state . . . ." (§ 1940 et seq.; see Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1034.) The chapter excludes certain transient hotel guests as defined in the statute. (§ 1940, subd. (b)(1).)
Specifically, the definition of "persons who hire" does not include persons maintaining "[t]ransient occupancy in a hotel . . . when the transient occupancy is or would be subject to tax under Section 7280 of the Revenue and Taxation Code." (§ 1940, subd. (b)(1).) Revenue and Taxation Code section 7280, subdivision (a) allows the legislative body of a general law city to levy a transient occupancy tax on hotel room occupancy "unless the occupancy is for a period of more than 30 days." Consequently, the transient occupancy tax is not authorized if occupancy is longer than 30 days, and correspondingly, a qualifying person includes one whose occupancy is less than 30 days.
To prevent defined residential hotels from circumventing tenant protections, the Legislature bars any person from requiring a residential hotel occupant "to move, or to check out and register," before expiration of 30 days' occupancy if the person's purpose is to avoid application of section 1940's provisions. Section 1940.1 provides in part: "No person may require an occupant of a residential hotel, as defined in Section 50519 of the Health and Safety Code, to move, or to check out and reregister, before the expiration of 30 days occupancy [sic] if a purpose is to have that occupant maintain transient occupancy status pursuant to paragraph (1) of subdivision (b) of Section 1940. Evidence that an occupant was required to check out and reregister shall create a rebuttable presumption, which shall affect solely the burden of producing evidence, of the purpose referred to in this subdivision." (§ 1940.1, subd. (a).) The law provides for a civil action, and violations are punishable by a five-hundred-dollar civil penalty. (§ 1940.1, subd. (b).)
Legislative history of section 1940.1 in connection with a 2004 amendment states that the statute "seeks to discourage the practice of the '28-day shuffle' occurring in many residential hotels. The author explains that this practice involves 'requiring tenants to register every 28 days to avoid the tenant residing in the hotel for 30 days and thereby gaining several tenant protections. Many individuals seek shelter in hotels as a stop gap measure, for others, hotels provide a last resort. Recognizing this reality, the legislature has provided that guests who spend more than 30 days in a "residential hotel" are to be afforded the same legal protections as a tenant who can pay for more traditional housing.' The Los Angeles City Attorney's Office, the sponsor of this bill, writes, 'Notwithstanding the Civil Code prohibition, owners and managers of some residential hotels persist in this illegal practice which is commonly referred to as the "28-day shuffle"—before 30 days of residency. Individuals are required to move out and after a brief period of time allowed to re-register. This process is repeated again and again, resulting in persistent dislocation of disadvantaged population and causing them ongoing hardship.'
"Under existing law, owners and managers of residential hotels are prohibited from requiring occupants to move, or to check out and reregister, before the 30th day of their occupancy in order to deny them substantive rights which begin to apply after the 30th day. By helping to cut down on the 28-day shuffle, this bill seeks to ensure that occupants of residential hotels who remain in their occupancies after 30 days are granted a number of important tenant protections, including, as Western Center on Law and Poverty notes, 'minimum requirements that owners maintain plumbing, heating and electrical services in good order; authorization for tenants to repair uninhabitable conditions and deduct the costs from the rent and retaliatory eviction protections. In rent control cities, the [28-day shuffle] also serves to circumvent rent control protections.' " (Assem. Floor Analysis, Concurrence in Senate Amendments of Assem. Bill No. 2867 (2003-2004 Reg. Sess.) as amended Aug. 9, 2004, p. 2.)
III. Analysis
The sole issue on review is whether the trial court abused its discretion when it concluded Hansen did not meet her burden to present evidence that there were a sufficient number of putative class members to justify class treatment. As stated, the numerosity question entails only an inquiry of how many individuals fit within the class description and whether the class is so numerous that joinder of all of its members is impracticable, and the court is entitled to consider the totality of the evidence to decide that question. (Code Civ. Proc., § 382; Hendershot v. Ready to Roll Transportation, Inc., supra, 228 Cal.App.4th at p. 1223 [numerosity analysis is "limited to how many individuals fell within the class definition and whether their joinder was impracticable"]; Soderstedt v. CBIZ Southern California, LLC, supra, 197 Cal.App.4th at p. 154.) Under the above-referenced standard of review, we do not address whether the class is ascertainable or whether there is a well-defined community of interest among the parties to be represented in that there are common questions of law and fact applicable to the whole class. The parties do not contest whether Hansen's claims are typical of those of the proposed class, or whether she is an adequate representative.
Nor do we address merits-related questions having nothing to do with the numerosity inquiry, such as whether Hotel qualifies as a residential hotel subject to section 1940.1. Thus, we do not address Hotel's arguments that Hansen had failed to prove it was such a hotel within the meaning of the statute, as this question does not bear on whether there are numerous people who fall within the class definition. We do not deal with whether any particular putative class member has standing to bring a section 1940.1 claim, or whether the class definition is overbroad because it includes persons who did not stay longer than 30 days, or re-register after their 14-to-28-day stay. Claims concerning overbreadth of the class go to ascertainability, not whether the defined class is sufficiently numerous to warrant class treatment. (See Sevidal v. Target Corp. (2010) 189 Cal.App.4th 905, 921-922 [observing that class certification can be denied for lack of ascertainability when the proposed definition is overbroad, and concluding where 80 percent of purchasers were not exposed to the alleged misrepresentation, trial court did not abuse its discretion by concluding plaintiff did not meet his burden to show an ascertainable class]; see also Ghazaryan v. Diva Limousine, Ltd. (2008) 169 Cal.App.4th 1524, 1533, fn. 8 [same, citing cases].)
Here, as stated, Hansen's proposed class consisted of persons who stayed at Hotel "for at least 14 consecutive days between July 7, 2011[,] and the current date and who were required to move out or check out and reregister before the expiration of 30 consecutive days of occupancy." Her evidence included the fact—undisputed by Hotel—that Hotel required guests who wished to stay beyond 28 days to enter into a monthly agreement and pass a credit check before checking in. She presented unrebutted documentary evidence consisting of an agreed-upon sampling of guests from the year 2014; as attorney Wilens stated in his declaration, these documents were produced in discovery by Hotel's counsel and in part reflect the name of the guest, that guest's room number, and the dates the guest stayed at Hotel. It included a table showing that in the year 2014 alone in the three-year class period, over 90 guests checked out after a stay of between 21 and 28 days, several of whom (Arocha, Suru, Nikkinen, Baine, Theilman, Valenti, Keil) who checked out and checked back in within a few days. As we have pointed out, there is no set number to satisfy the numerosity requirement, and Hansen additionally cites cases upholding class numbers as low as 28, 42, 44 and 53 members. (Hebbard v. Colgrove (1972) 28 Cal.App.3d 1017, 1030 [class of 28 members held sufficient number to maintain a class action]; Rose v. City of Hayward (1981) 126 Cal.App.3d 926, 934 [class of 42 retirees against public employee retirement system]; Collins v. Rocha (1972) 7 Cal.3d 232, 234 (Collins ) [class of 44 trust beneficiaries in action against trustee for improper conduct]; Hendershot v. Ready to Roll Transportation, Inc., supra, 228 Cal.App.4th at p. 1222 [53 class members were within class description].) Another chart shows many more guests who stayed at Hotel more than 14 days and checked out before expiration of the 30-day period. Under section 1940.1, evidence that a guest was required to move before the 28th day is sufficient by itself to establish a violation of section 1940.1. (§ 1940.1, subd. (a).)
The trial court ruled that Hansen's evidence, and particularly Wilens's declaration, was speculative and insufficient, and it only showed that Hansen, and no other person, was "required to move out or to check out and reregister before the expiration of 30 consecutive days of occupancy" during the class period, making it insufficient to demonstrate a numerous class. On appeal, Hotel urges us to uphold this ruling, arguing none of the evidence show any guest was required by Hotel to move out, or check out and reregister, and there was no evidence of a policy of any such practice. It refers to the spreadsheets as "hearsay." Hotel argues none of the evidence demonstrates any of the guests signed the week-to-week agreement that Hansen signed; that Hansen's declaration did not include any statement identifying any individual Hotel guest who entered into that agreement or who were required to move out or to check out and reregister. Hotel even maintains that there is no admissible evidence Hansen signed such a week-to-week agreement, but only her "belief" she did so.
The latter assertion is contradicted by the record. Hansen's declaration states: "Each time I started occupancy at . . . Hotel I was required to sign a Week to Week Agreement. A true and correct copy of the Agreement presented to me in June and July 2014 is attached hereto as Exhibit 4 and incorporated thereby."
Hotel's arguments are unavailing. Wilens's declaration, which authenticated and summarized the above-described and unchallenged documentary evidence produced by Hotel, provided sufficient foundation. And it was not a matter of speculation to conclude from the undisputed evidence of Hotel's 28-day policy and tables reflecting check-in and check-out dates, that numerous guests with poor credit history, or who declined to undergo a credit check, were subject to Hotel's policy and left Hotel before day 28. That is, those guests were required or forced to move out before 30 days under the policy, which was in place regardless of whether they actually entered into the formal week-to-week contract. In some cases, guests reregistered within several days. Based on this sampling, which was taken from only one year of a three-year class period, a sufficient number of guests met the class definition for purposes of maintaining a class action. It is well settled that a plaintiff need not allege the exact number or specific identity of proposed class members. (P.P. v. Compton Unified School District (C.D.Cal. 2015) 2015 WL 5752770, *5; see also *8 ["a good-faith estimate of the class size is sufficient when the precise number of class members is not readily ascertainable"]; Westways World Travel, Inc. v. AMR Corp (C.D.Cal. 2003) 218 F.R.D. 223, 233-234 ["Plaintiffs are not required to quantify with precision the number of class members[.] . . . Plaintiffs may rely on reasonable inferences drawn from the available facts in estimating the size of the class"].) Thus, this case is not like Soderstedt v. CBIZ Southern California, LLC, supra, 197 Cal.App.4th 133, in which the appellants seeking class certification "proffered no evidence to support their allegations that there were 146 putative class members" (italics added) and whose representatives and counsel did not identify the number of allegedly misclassified persons. (Id. at p. 154.) Confining our review to the trial court's numerosity decision, we hold the court's finding that Hansen's evidence only proved she was the sole class member is not supported by the evidence, and its ruling discrediting Wilens's declaration and Hansen's proof was an abuse of discretion.
It is not an element of a section 1940.1 violation that there be evidence the guest desires to stay more than 28 days; it is sufficient that there is some indication that Hotel discourages guests from staying beyond that point (or requiring them to check out and reregister) so as to categorize them as transient guests and avoid the protections of section 1940. We likewise conclude it would not be speculative to infer that a purpose of Hotel's policy was to prevent credit-challenged guests from becoming tenants. But these are merits-related questions, not one pertaining to whether there are sufficiently numerous members of Hansen's proposed class.
Nor is this a matter of the trial court acting within its discretion to disregard uncontested evidence, as Hotel maintains. The authority cited by Hotel—Ortzman v. Van Der Waal (1952) 114 Cal.App.2d 167—addresses credibility determinations of experts, which the trial court did not make. (Id. at p. 170 [" 'Even if several competent experts concur in their opinions, and no opposing opinion is offered, the jury are still bound to decide the issue upon their own judgment assisted by the statements of the experts' "; " 'The trier of the facts is the exclusive judge of the credibility of the witnesses. [Citation.] . . . Provided the trier of the facts does not act arbitrarily, he may reject in toto the testimony of a witness, even [if] the witness is uncontradicted' "]; see also Goehring v. Chapman University (2004) 121 Cal.App.4th 353, 368; Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 633; In re Marriage of Huntington (1992) 10 Cal.App.4th 1513, 1522.) Here, we have concluded Wilens's declaration, which was uncontested in its conclusions, provided sufficient foundation and was not speculative, contrary to the court's findings.
We observe that the trial court did not at all address whether it would be "impracticable" to bring all of the class members before the court. As stated, "[i]mpracticability does not mean impossibility," but rather asks the court to assess the difficulty or inconvenience of joining all members of the class. (Hendershot v. Ready to Roll Transportation, Inc., supra, 228 Cal.App.4th at p. 1222, citing Harris v. Palm Springs Alpine Estates, Inc. (9th Cir. 1964) 329 F.2d 909, 913-914.) Class size is not dispositive in determining whether joinder is impracticable; size is just one factor. Other factors include the ease of identifying and locating members, which may depend on the geographic diversity of the class, and their financial resources. (See Rubenstein, Newburg on Class Actions (5th ed. 2011), § 3:12; Hendershot, at p. 1222.) As the documents demonstrate, the class consists of a geographically dispersed group of traveling hotel guests, some of whom are international. The considerations weigh in favor of certification.
As we are unable to uphold the sole basis for the trial court's order denying class certification, we must reverse the order and order the court to issue a new order granting Hansen's motion for class certification.
DISPOSITION
The order denying class certification is reversed and the matter remanded with directions that the trial court grant Hansen's motion for class certification. Hansen shall recover costs on appeal.
O'ROURKE, J. WE CONCUR: BENKE, Acting P. J. IRION, J.