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Lynn Evenchik, On Behalf of Herself and All Others Similarly Situated v. Avis Rent A Car System

September 17, 2012

LYNN EVENCHIK, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
AVIS RENT A CAR SYSTEM, LLC, DEFENDANT.



The opinion of the court was delivered by: Hon. Roger T. BenitezUnited States District Judge

ORDER DENYING DEFENDANT'S MOTION TO DISMISS and DIRECTING COMPLIANCE WITH FED. R. CIV. P. RULE 5.1 [Docket No. 12]

Presently before the Court is the motion to dismiss filed by Defendant Avis Rent A Car System, LLC ("AVIS"). For the reasons stated below, the motion is denied.

I. BACKGROUND

According to the Complaint, Plaintiff rented a car from AVIS in July 2011, in the County of San Diego, California. She was charged $311.36. According to the Complaint, at that time AVIS gave large price discounts to members of two groups: the International Gay and Lesbian Travel Association and the National Gay and Lesbian Chamber of Commerce. Plaintiff is not a member of either group. The Complaint further alleges that AVIS did not give her the gay and lesbian group member price discount. Plaintiff alleges that California's Unruh Civil Rights Act (California Civil Code § 51 and its related section § 51.5) prohibits a business from discriminating between its customers on the basis of sexual orientation. According to the Complaint, a business also violates California Business and Professions Code § 17200, which prohibits unfair business practices, when it gives price discounts to some customers, but not all customers, on the basis of sexual orientation. Plaintiff also asserts a class action on behalf of other similarly situated persons who rented cars from AVIS in California and who did not receive the gay and lesbian group member price discount. AVIS does not challenge the class action allegations at this time. AVIS seeks only dismissal of the Complaint on the basis that Plaintiff has failed to state a claim for relief.

II. DISCUSSION

A. Request to Take Judicial Notice

Defendant requests the Court take judicial notice of six documents in support of their motion to dismiss. The six documents appear to be screen shots of various business web pages. Exhibits A and B are undated AVIS web pages listing various offers. Exhibit C is a Hilton web page dated Feb. 22, 2012. Exhibit D is an United Airlines web page (undated). Exhibit E appears to be an aavacations.com web page (undated). Exhibit F appears to be a myrewardzone.bestbuy.com web page (undated). None of these exhibits are the type of documents for which judicial notice can be taken under Federal Rule of Evidence 201(b).

Federal Rule of Evidence 201(b) explains that "[a] judicially noticed fact must be one not subject to reasonable dispute in that it is . . . capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Judicial notice is proper only when the matter is "beyond reasonable controversy." Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1151 (9th Cir. 2005) (quoting Fed. R. Evid. 201 advisory committee note). Screen shots of web pages, especially because of the ever-changing content, are not typically the type of document containing facts, the accuracy of which is capable of ready determination. See e.g., In re Easysaver Rewards Litig., 737 F. Supp. 2d 1159, 1167-68 (S.D. Cal. 2010) (Anello, J.) (declining to take judicial notice of changing web screen shots); Ferrington v. McAfee, Inc., 2010 U.S. Dist. LEXIS 106600 (N.D. Cal. Oct. 5, 2010) (declining to take judicial notice of changing web screen shots provided by defendant); but see Kenneally v. Bank of N.S., 711 F. Supp. 2d 1174, 1183 (S.D. Cal. 2010)

(Hayes, J.) (taking judicial notice of unchallenged material on website run by U.S. Department of Housing and Urban Development regarding property owner's registration under the Land Sales Act). The Court declines AVIS's request to take judicial notice of the web page screen shots under Rule 201.

Alternatively, AVIS argues that the screen shots should be considered under the doctrine of incorporation by reference. In resolving a Rule 12(b)(6) motion, a court generally cannot consider material outside the complaint. Branch v. Tunnel, 14 F.3d 449, 453-54 (9th Cir. 1994). However, a court may consider exhibits attached to the complaint. Id. A court may treat such a document as "part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under the Rule 12(b)(6)." United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); see also Castagnola v. Hewlett-Packard Co., 2012 U.S. Dist. LEXIS 82026 (N.D. Cal. June 13, 2012) (considering screen shots of defendant's web pages which plaintiff incorporated into his complaint). "Even if a document is not attached to a complaint, it may be incorporated by reference into a complaint if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff's claim." Ritchie, 342 F.3d at 908. "The defendant may offer such a document, and the district court may treat such a document as part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6)." Id. (doctrine applies when a claim about insurance coverage is based on the contents of a coverage plan or when a claim about stock fraud is based on contents of SEC filings).

AVIS asserts that Plaintiff references the AVIS website in her Complaint. The gist of the Complaint is about rental discounts based on a customer's sexual orientation not offered to Plaintiff at an AVIS airport car rental counter. It is not about rental transactions made through AVIS's website. Paragraph 10 of the Complaint refers to a "Avis-Prouder" website page, but the exhibit appears to be part of a computer file labeled: mhtml:file://C:\Documents and Settings\david\Destop\Avis - Prouder.mht. See Notice of Lodgment in Support, Exh. B. None of the documents offered by AVIS purport to complete the "Avis - Prouder" document.

The Complaint also refers generally to AVIS's website while quoting language about commission rates AVIS pays to its rental car affiliates. None of the documents offered by AVIS purport to complete the terms upon which AVIS offers commissions. AVIS cites no other references to AVIS's website nor references to the websites of Hilton, United Airlines, aavacations.com, or myrewardzone.bestbuy.com. The Court finds that the six exhibits offered by AVIS are not proper documents for applying the incorporation by reference doctrine. Defendant's request to take judicial notice is denied.

B. Defendant's Motion to Dismiss

Defendant moves to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6). Dismissal is appropriate under Rule 12(b)(6) if the Complaint fails to state a plausible claim for relief on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556-57 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (requiring plaintiff to plead factual content that provides "more than a sheer possibility that a defendant has acted unlawfully"). Under this standard, dismissal may be obtained if the Complaint fails to state enough facts to raise a reasonable expectation that discovery will ...


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