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March 25, 2026 Get Citation Alerts Download PDF Add Note

Aerni v. RR San Dimas

California Court of Appeal

• Citations: None known

• Docket Number: B341484

• Opinion

• Authorities (8)

• Cited By (0)

• Summaries (0)

• Similar Cases (53.7K)

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Combined Opinion

Filed 3/25/26
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE

MELISSA I. AERNI et al., B341484

Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. 22STCV37210)
v.

RR SAN DIMAS, L.P., et al.,

Defendants and
Respondents.

APPEAL from an order of the Superior Court of
Los Angeles County, Lawrence Riff, Judge. Reversed and
remanded.
Clarkson Law Firm, Glenn A. Danas, Brent A. Robinson;
Yash Law Group and Yashdeep Singh for Plaintiffs and
Appellants.
Chen Horwitz & Franklin and John Horwitz for Defendants
and Respondents.

‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Plaintiffs Melissa I. Aerni and Katherine Atsaves brought
this putative class action against defendants RR San Dimas, L.P.
and Mountain High/Holiday Hill Corporation, owners of the
Red Roof Inn in San Dimas (the hotel), alleging violations of
Civil Code section 1940.1.1 Section 1940.1 was intended to curb
what its drafters referred to as the “28-day shuffle”—the practice
of some residential hotels of requiring residents to move out, or
check out and reregister, every 28 days to avoid obtaining tenant
protections. Consistent with this purpose, the statute provides a
private right of action to plaintiffs who can prove the following:
(1) the plaintiff occupied a “residential hotel”— i.e., a multi-unit
building used, or intended to be used, as guests’ primary
residence, unless the building is “primarily” used by guests who
stay fewer than 30 days and have another primary residence;
(2) the hotel required the plaintiff to move out, or to check out
and reregister, prior to 30 days of occupancy; and (3) a purpose of
the hotel’s move-out policy was to maintain the plaintiff’s
“transient occupancy” status—that is, to prevent the plaintiff
from occupying the hotel for 30 days or more. (§ 1940.1,
subd. (a).)
Plaintiffs appeal from the trial court’s denial of class
certification. The trial court found that the proposed class—
individuals who stayed at the hotel at any time between
November 2018 and the present, and who moved out, or checked
out and reregistered, after 28 consecutive days of occupancy—
was numerous and ascertainable, and the proposed class
representatives had claims typical of the class and could

1 Subsequent statutory references are to the Civil Code
unless indicated otherwise.

2
adequately represent it. The trial court nonetheless denied class
certification because it concluded that individualized issues
predominated over common ones. In coming to this conclusion,
the trial court interpreted section 1940.1 to require
individualized proof that class members used the hotel as their
“primary residence.”
We conclude that the trial court erred by interpreting
section 1940.1 to require individualized proof that class members
used the hotel as their “primary residence.” We therefore reverse
the order denying class certification and remand the matter to
the trial court to revisit the class certification question.
FACTUAL AND PROCEDURAL BACKGROUND
I. Plaintiffs’ hotel stay.
Defendants own the hotel, a 134-room economy hotel in
San Dimas, California. Since at least November 2018, the hotel
has enforced a maximum 28-day stay policy that applies to all
guests. Under that policy, at check-in the hotel advises guests
verbally and in writing that they may register for a maximum of
28 days, and it requires guests to initial their acknowledgement
of the maximum-stay policy. When a guest stays 28
uninterrupted days, the hotel requires the guest to check-out and
completely vacate the property for at least three days before
reregistering. A representative of the hotel’s general partner
testified that a purpose of this policy is to avoid creating a
landlord-tenant relationship with guests.
Plaintiffs registered as guests on multiple occasions from
June 2022 to November 2022. Their 28-day stays included
June 7, 2022 to July 5, 2022, July 8, 2022 to August 5, 2022,
August 9, 2022 to September 6, 2022, September 9, 2022 to

3
October 7, 2022, and October 17, 2022 to November 14, 2022.
Each time their 28-day maximum was reached, plaintiffs checked
out of the hotel and stayed elsewhere, typically in their vehicle or
at another motel, for three days before checking back into the
hotel.
II. Complaint and motion for class certification.
Complaint. In November 2022, plaintiffs filed a putative
class action against defendants alleging four causes of action:
violations of section 1940.1, violations of section 52.1,2 negligence,
and unfair competition. All four causes of action were premised
on defendants’ alleged violations of section 1940.1.
Motion for Class Certification. In April 2024, plaintiffs
moved for certification of a class defined as: “ ‘All persons who
stayed at the hotel located at 204 Village Court, San Dimas,
California 91773 and moved out, or checked out and re-
registered, after at least 28 consecutive days of occupancy, but
before 31 consecutive days of occupancy at any time from
November 28, 2018 through the present.’ ”
Plaintiffs argued that the proposed class was readily
ascertainable and numerous. They asserted that by defendants’
own admission, more than 200 guests checked out of the hotel
after exactly 28 days of occupancy, and more than 50 guests
checked out of the hotel after exactly 28 days and then
reregistered after 72 hours. They thus suggested that the class

2 Section 52.1, known as the Tom Bane Civil Rights Act,
creates a cause of action for interfering by threats, intimidation,
or coercion with rights secured by federal or state law.

4
would contain at least 200 members, and could, based on
plaintiffs’ sampling of guest data, exceed 1,700 individuals.
Plaintiffs further contended that common questions of law
and fact predominated. They noted that defendants’ liability
turned in part on whether the hotel was a “residential hotel”—
that is, a building “containing six or more guestrooms or
efficiency units . . . 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, . . . which is
primarily used by transient guests who do not occupy that
building as their primary residence.” (Health & Saf. Code,
§ 50519.) Plaintiffs offered the following evidence to show that
the hotel’s status as a “residential hotel” was a common question
susceptible to common proof. The hotel consists of 134 rooms
used as guestrooms, all of which have a telephone, television,
sink, shower, tub, lockable door, microwave, and refrigerator.
Half or fewer of the rooms are equipped with electric cooktops.
Coin-operated laundry facilities are available on site for guest
use. Guests may receive mail and packages at the hotel. Some
guests stay at the hotel for months at a time, and some have
resided there for more than five years. The hotel is advertised on
Craigslist as an “extended stay” property with weekly rates of
$427. These advertisements are posted in the “apartments,
housing for rent” section of Craigslist. Some guests list the
address of the hotel as their primary residence on their guest
registration cards, and defendants do not prohibit this practice.
And, a hotel principal testified that guests may occupy the hotel
long-term as long as they check out for three days every 28 days.

5
Plaintiffs contended that a purpose of the hotel’s 28-day
maximum-stay policy was to maintain the transient occupancy
status of all class members. In support, plaintiffs pointed to
evidence that the hotel required all guests to check out of the
hotel after the 28th consecutive day of occupancy; guests could
not return to their units at the hotel for at least three days;
guests could reside at the hotel indefinitely so long as they
checked out for three days every 28 days; and a hotel principal
testified at his deposition that the policy was intended, in part, to
avoid lengthy eviction proceedings.
Finally, plaintiffs urged that their claims were typical of
the class, they could adequately protect the interests of absent
class members, and a class action was a superior method of
adjudication because the claims were predicated on a uniform
policy that was applied to all class members and could be
established through common proof.
Opposition. Defendants opposed class certification.
Defendants argued the hotel was not a “residential hotel” within
the meaning of the statute because it was used primarily by
transient guests. In support, defendants produced evidence that
the hotel did not rent rooms on a monthly or yearly basis, guests
were not asked to sign leases, and guests were told that their
stays could not exceed 28 days. After 28 days, guests were
required to move out, and they could not reregister for at least
three days. The hotel did not store belongings for extended stay
guests or hold rooms for them. The hotel had never applied for a
local conditional-use permit for single use occupancy, which

6
would have allowed the hotel to lawfully operate as a residential
dwelling.3
Defendants also argued that all potential class members
would have to prove the hotel was their primary residence to
succeed in the action. Defendants urged: “The class definition
. . . ignores the crucial preliminary issue under Section 1940.1 of
ascertaining who would qualify as members of the putative class
based upon their use of a building as their primary residence. An
individualized inquiry would be required of each potential class
member to determine whether the building was that individual’s
primary residence at a time when the building was not primarily
used by transient guests. . . . Since there is no readily available
means or method for identifying possible members of such a class
in this case, the purported class is not readily ascertainable.”
Defendants also urged that plaintiffs were not typical and could
not adequately represent the proposed class.
Reply. In reply, plaintiffs argued that “requiring proof
that the Hotel is each [c]lass member’s primary residence . . . is
not a proper precondition for class membership.” Plaintiffs
asserted: “To qualify as a residential hotel, the Hotel cannot be
primarily used (i.e., occupancy of more than 50%) by transient
guests. (Health & Saf. Code, § 50519(b)(l).) As Defendants
acknowledge, a statistical analysis about the total number of
guests at the Hotel and the length of their stays at the Hotel can

3 Defendants also offered proof from a data analyst regarding
occupancy data. However, plaintiffs objected to the analyst’s
testimony as lacking foundation because the analyst did not
disclose the formulas that allegedly supported his analysis. The
trial court sustained the objection and did not consider the data
analyst’s testimony; thus, we do not describe it.

7
be conducted. Such common proof would establish that the Hotel
is not primarily used by transient guests and, therefore, qualifies
as a residential hotel, subjecting Defendants to class-wide
liability.”
III. Denial of class certification.
The trial court denied plaintiffs’ class certification motion.
The court found that the class was sufficiently numerous and
ascertainable, plaintiffs’ claims were typical of those of the absent
class members, and plaintiffs and their trial counsel were
adequate representatives of the proposed class. The trial court
also found that whether the hotel enforced a practice of requiring
hotel guests to move out, or to check out and reregister, before
the expiration of 30 days occupancy was subject to common proof.
However, the trial court found that whether the hotel was a
“residential hotel” was not susceptible of common proof because
the court interpreted section 1940.1 to require proof that each
plaintiff used the hotel as his or her “primary residence.” The
trial court explained: “The question at hand is whether the
status of the hotel is a question susceptible of common proof. The
question largely focuses on the composition of the hotel building
and how it is intended to be used, or is actually used, by hotel
guests. . . .
“Furthering their argument the hotel was not a ‘residential
hotel,’ Defendants contend the question of whether a guest used
the hotel as his or her ‘primary residence’ is not a question
susceptible of common proof. The use of a building as a guest’s
‘primary residence,’ as mentioned, is a defining feature of a
residential hotel. In Defendants’ view, ‘[a]n individualized
inquiry would be required of each potential class member to
determine whether the building was that individual’s primary

8
residence at a time when the building was not primarily used by
transient guests. Valid membership in the putative class
unavoidably requires a determination of the residency status of
the putative class member, as well as the residency status of
others who occupied the hotel at the same time.’ [Record
citation.] Defendants contend that every hotel guest was
‘required to provide their permanent address when registering’
and therefore each member of the class would ‘have to explain
[his or her] permanent address was not [his or her] primary
residence.’ [Record citation.]
“In reply, Plaintiffs argue Defendants ‘conflate the Hotel
being a “primary residence” of guests, which qualifies the Hotel
as a residential hotel, with “permanent residence” of guests,
which is not required.’ [Record citation.] They urge that
‘[r]esolving the question of liability—that is, whether the Hotel
qualifies as a residential hotel—must wait until after class
certification.’ [Record citation.] ‘After class certification,
Plaintiffs could conduct further investigation and discovery into
the occupancy rate at the Hotel and the apportionment of
occupancy between transient and non-transient guests. . . .’
[Record citation.]
“Defendants’ briefing makes clear: one of their principal
theories is the hotel did not qualify as a ‘residential hotel’ within
the meaning of Civil Code section 1940.1. A residential hotel is
partly defined as a building 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. . . .’ A question at trial,
apparently, will be whether the hotel was ‘also the primary
residence of those guests.’ The issue here is whether this

9
question is susceptible of common proof at trial. . . . [T]he Court
concludes the answer is no.”
Plaintiffs timely appealed from the order denying class
certification.
DISCUSSION
Plaintiffs urge the trial court erred by denying class
certification on the ground that section 1940.1 requires plaintiffs
to prove the hotel was their primary residence. We agree.
I. Legal standards.
A. Class certification and standard of review.
Code of Civil Procedure section 382 authorizes class suits
when the subject of the suit “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.” Our
Supreme Court has articulated “clear requirements for the
certification of a class”—namely, (1) predominant common
questions of law or fact; (2) class representatives with claims or
defenses typical of the class; (3) class representatives who can
adequately represent the class; (4) an ascertainable and
sufficiently numerous class; and (5) 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); Leeds v. City of Los Angeles
(2025) 115 Cal.App.5th 537, 545 (Leeds).)
The certification question “ ‘is “essentially a procedural one
that does not ask whether an action is legally or factually
meritorious,” ’ ” and thus 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

10
of the certification motion that any claims have merit [citation].”
(Brinker, supra, 53 Cal.4th at p. 1023.) If evidence or legal issues
“germane to the certification question bear as well on aspects of
the merits,” a court may properly evaluate them. (Id. at
pp. 1023–1024.) However, “[s]uch inquiries are closely
circumscribed,” and thus “any ‘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.”
(Ibid.)
In the present case, only a single element of class
suitability is in dispute: whether individual or common questions
predominate. To assess predominance, a court “must examine
the allegations of the complaint and supporting declarations
[citation] and consider whether the legal and factual issues they
present are such that their resolution in a single class proceeding
would be both desirable and feasible. [Fn. omitted.] ‘As a
general rule if the defendant’s liability can be determined by facts
common to all members of the class, a class will be certified even
if the members must individually prove their damages.’ ”
(Brinker, supra, 53 Cal.4th at pp. 1021–1022.)
B. Appealability and standard of review.
An order denying class certification is appealable under the
“ ‘death knell’ ” doctrine. (See Meinhardt v. City of Sunnyvale
(2024) 16 Cal.5th 643, 656, fn. 8; In re Baycol Cases I & II (2011)
51 Cal.4th 751, 757–758; Arzate v. ACE American Ins. Co. (2025)
108 Cal.App.5th 1191, 1198 [“under the ‘ “death knell” ’ doctrine,
an order denying the certification of a class is appealable even
though no statute says so because ‘the denial of class certification
is “tantamount to a dismissal of the action as to all members of
the class other than plaintiff,” ’ and is in essence a final judgment

11
as to all potential class members apart from the named
plaintiff”].)
An appellate court’s review of a class certification order 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.) Thus, “ ‘[u]nlike the general rule
compelling a reviewing court to scrutinize the result below, not
the trial court’s rationale, we analyze the propriety of an order
denying class certification based solely on the lower court’s stated
reason for the decision.’ (Weinstat v. Dentsply Internat., Inc.
(2010) 180 Cal.App.4th 1213, 1223–1224.)” (Leeds, supra,
115 Cal.App.5th at pp. 545–546.) “ ‘Under this standard, an
order based upon improper criteria or incorrect assumptions calls
for reversal “ ‘even though there may be substantial evidence to
support the court’s order.’ ” ’ ” (Noel v. Thrifty Payless, Inc. (2019)
7 Cal.5th 955, 968; see also Ayala v. Antelope Valley Newspapers,
Inc. (2014) 59 Cal.4th 522, 537 [“[a] certification decision is
reviewed for abuse of discretion, but when the supporting
reasoning reveals the court based its decision on erroneous legal
assumptions about the relevant questions, that decision cannot
stand”].)

12
II. The trial court’s denial of class certification was
based on the erroneous legal assumption that
proving the hotel was “residential” required
individualized proof.
The trial court concluded that common issues of law or fact
did not predominate because in the court’s view, to establish a
claim under section 1940.1, each plaintiff had to prove that the
hotel was “their primary residence.” This was error.
When we interpret a statute, our task “ ‘is to determine the
Legislature’s intent so as to effectuate the law’s purpose. We first
examine the statutory language, giving it a plain and
commonsense meaning. We do not examine that language in
isolation, but in the context of the statutory framework as a
whole in order to determine its scope and purpose and to
harmonize the various parts of the enactment. If the language is
clear, courts must generally follow its plain meaning unless a
literal interpretation would result in absurd consequences the
Legislature did not intend. If the statutory language permits
more than one reasonable interpretation, courts may consider
other aids, such as the statute’s purpose, legislative history, and
public policy.’ ” (Sierra Club v. Superior Court (2013) 57 Cal.4th
157, 165–166.) We review a statute’s meaning de novo. (See Law
Office of Carlos R. Perez v. Whittier Union High School Dist.
(2023) 87 Cal.App.5th 463, 470.)
Section 1940.1 was adopted in 1990 and amended in 2004.
As described in its legislative history, the statute was intended to
curb the “28-day shuffle”—the practice engaged in by some
owners and managers of residential hotels of requiring residents
to move out and reregister every 28 days to avoid obtaining

13
tenant protections.4 Committee reports noted that many
individuals seek shelter in hotels “ ‘as a stop gap measure,’ ” and
“ ‘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.’ ” (Assem. Floor Analysis, Concurrence in Senate
Amendments of Assem. Bill No. 2867 (2003–2004 Reg. Sess.) as
amended Aug. 9, 2004, p. 2.) “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, . . .
‘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.’ ” (Ibid.)
As relevant here, section 1940.1, subdivision (a) states:
“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 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.” (Italics
added.) Violations of section 1940.1 are punishable by a civil

4 The court previously deferred ruling on plaintiffs’ request
for judicial notice filed May 7, 2025. We now grant the request.

14
penalty of $500, and the prevailing party is also entitled to
reasonable attorney fees. (§ 1940.1, subd. (b).)
Health and Safety Code section 50519 defines a
“ ‘residential hotel’ ” as “any building containing six or more
guestrooms or efficiency units . . . 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 . . .
which is primarily used by transient guests who do not occupy
that building as their primary residence.” The statute does not
define what percentage of guests must be nontransient in order
for a hotel to be “residential,” or what proof is required to
establish that a hotel is a guest’s “primary residence.”5
“Transient occupancy” within the meaning of section 1940,
subdivision (b)(1) is occupancy “subject to tax under Section 7280
of the Revenue and Taxation Code.” Revenue and Taxation Code
section 7280, subdivision (a) permits cities and counties to tax
occupancy of less than 30 days, and thus “[t]ransient occupancy
status” as used in section 1940.1, subdivision (a) means an
occupancy of less than 30 days.
Considering these sections together, a plaintiff alleging a
violation of section 1940.1 therefore must prove the following:

5 An initial version of the bill defined a residential hotel as
one with at least a 25 percent nontransient occupancy, but this
definition was deleted from the final version of the bill “[d]ue to
the inability of the interested parties to agree upon a consensus
definition for residential hotel.” Instead, the final version
“restore[d] the existing cross-reference” to the Health and Safety
Code.

15
(1) the plaintiff occupied a “residential hotel”—i.e., a multi-unit
building used, or intended to be used, as guests’ primary
residence, unless the building is “primarily” used by guests who
stay fewer than 30 days and have another primary residence;
(2) the hotel required the plaintiff to move out, to or check out
and reregister, prior to 30 days of occupancy; and (3) a purpose of
the hotel’s move-out policy was to maintain the plaintiff’s
“transient occupancy” status—that is, to prevent the plaintiff
from occupying the hotel for 30 days or more. (§ 1940.1,
subd. (a).)
Contrary to the trial court’s conclusion, nothing in the
statute’s plain language requires plaintiffs alleging a violation of
section 1940.1 to demonstrate that the hotel was their own
primary residence. The statute does require plaintiffs to
demonstrate that the hotel is “residential”—that is, it is used or
is intended to be used as a “primary residence,” and it is not
“primarily used” by transient guests who have other “primary
residence[s].” (See Health & Saf. Code, § 50519, subd. (b)(1).)
But this is a hotel-specific inquiry, not a plaintiff-specific one,
because it turns on the character of the hotel and its intended or
actual use. Stated differently, whether the hotel is “residential”
depends on how the hotel as a whole is used or intended to be
used, and whether a sufficient number of guests stay for fewer
than 30 days and have other primary residences.6

6 The statute’s only individualized standing requirement is
that the plaintiff was required “to move, or to check out and
reregister, before the expiration of 30 days occupancy if a purpose
is to have that [plaintiff] maintain transient occupancy status.”
(§ 1940.1, subd. (a).) The trial court erred in concluding
otherwise.

16
Defendants appear to concede that whether the hotel is
residential is a hotel-wide inquiry. They nonetheless assert that
this case is not appropriate for class treatment because “each
occupant of [the] hotel would be subject to an individualized
inquiry to determine whether the hotel was the guest’s primary
residence, or whether the guest was a transient guest of the hotel
. . . at the time of an alleged violation of Section 1940.1. Only
through such individualized inquiries could a determination be
made regarding how the hotel was being primarily used at any
specified time, and thus whether the hotel was or was not a
residential hotel at that time.” (Italics added.)
If determining whether the hotel is “residential” requires
deciding whether it is each guest’s “primary residence,” as
defendants suggest, then the task before the court will indeed be
a complex one.7 But any such inquiry would go to the merits of
plaintiffs’ causes of action, not to whether a class should be

7 Plaintiffs urge that this kind of particularized inquiry is
unnecessary—that “ ‘primary residence’ means only where a
person has fixed his or her ordinary dwelling without a present
intention of removal,” and thus “ ‘primary residence’ may be
determined by reference only to the duration of an occupant’s
stay in the hotel in question, with a stay of 28 days
presumptively sufficient. . . . [¶] . . . [¶] . . . By providing for a
violation of section 1940.1 to be presumed upon interruption of a
single stay of 28 consecutive days . . . and by providing generally
that statutory landlord-tenant protections vest after 30 days of
occupancy . . . . the Legislature plainly intended for ‘primary
residence’ to, at a minimum, encompass a stay in a hotel of
28 days or more.” Because resolving this issue is not necessary to
deciding the class certification motion, we do not reach it. (See
Brinker, supra, 53 Cal.4th at p. 1025.)

17
certified. That is, if defendants are correct about the kind of
proof necessary to establish that a hotel is “residential,” then the
plaintiffs may have to demonstrate that the hotel was the
primary residence of a substantial number8 of other guests
during any applicable time period. But that inquiry is not made
any more complex by expanding the plaintiff class to include
other individuals who resided at the hotel during the relevant
time period.
We note that there are substantial ambiguities in the
statutory language. Notably, the statute does not define two of
the key issues relevant to liability—namely, under what
circumstances a hotel is a guest’s “primary residence,” and the
numerical threshold at which a hotel is “primarily” used by
transient guests who do not occupy the hotel as their primary
residence. The statute also does not define the time period for
evaluating a hotel’s “residential” status—that is, how to
determine a hotel’s residential status if the hotel is used
differently at different periods of time. These statutory
ambiguities make it difficult to know precisely what showing the
Legislature intended a plaintiff to have to make in order to prove
a statutory violation. But the ambiguities go to the merits of the
cause of action, which are not before us or the trial court in
connection with a motion for class certification.9

8 See fn. 5, ante.
9 We urge the Legislature to rectify these ambiguities so trial
courts will not be left to guess what standards apply to cases like
this one. But pending that clarification, the limited nature of our
appellate review precludes us from deciding them in the first
instance. (See, e.g., Ali v. U.S.A. Cab Ltd. (2009) 176 Cal.App.4th

18
For the foregoing reasons, the trial court erred by
concluding that section 1940.1 requires plaintiffs to show that the
hotel was their own primary residence. Because the trial court’s
order denying class certification was based on this legal error, we
reverse the order denying class certification and remand this
matter for the trial court to redetermine the motion. We express
no opinion on how the trial court should exercise its discretion on
remand.

1333, 1337 [“ ‘Our task on appeal is not to determine in the first
instance whether the requested class is appropriate but rather
whether the trial court has abused its discretion in denying
certification’ ”]; Capitol People First v. State Dept. of
Developmental Services (2007) 155 Cal.App.4th 676, 689 [same].)

19
DISPOSITION
We reverse the order denying class certification and
remand the matter to the trial court for further proceedings
consistent with this opinion. Plaintiffs are awarded their costs on
appeal.
CERTIFIED FOR PUBLICATION

EDMON, P. J.

We concur:

EGERTON, J.

ADAMS, J.

20