United States District Court, D. Hawaii
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO DISMISS
E. KOBAYASHI, UNITED STATES DISTRICT JUDGE
the Court is Defendants Vistana Vacation Ownership, Inc.
(“Vistana”) and Starwood Hotels & Resorts
Worldwide, LLC's (“Starwood, ” collectively
“Defendants”) Motion to Dismiss Complaint
(“Motion”), filed on December 21, 2018. [Dkt. no.
14.] Pro se Plaintiff Keicy Chung (“Plaintiff”)
filed his memorandum in opposition on January 3, 2019, and
Defendants filed their reply on February 21, 2019. [Dkt. nos.
20, 50.] The Court finds this matter suitable for disposition
without a hearing pursuant to Rule LR7.2(d) of the Local
Rules of Practice for the United States District Court for
the District of Hawaii (“Local Rules”).
Defendants' Motion is hereby granted in part and denied
in part for the reasons set forth below.
filed the instant action on November 29, 2018, based on
diversity jurisdiction. [Complaint (dkt. no. 1), at pg.
Plaintiff is a resident of the State of California, and
alleges Vistana is incorporated in and has its principal
place of business in Florida, while Starwood is incorporated
in and has its principal place of business in Maryland.
[Id. at pgs. 4, 5, 8.]
alleges that, on May 22, 2006, he entered into an agreement
with Defendants to purchase a timeshare unit at the
“Ocean Resort Villas North” in Ka`anapali,
Hawai`i, under contract number 309245 (“2006
Contract”). [Id. at pgs. 9-10.] Plaintiff
received an “Owner(s) Copy” of the sales contract
for his records, and alleges he achieved “Platinum
status” through the Starwood Preferred Guest
(“SPG”) Loyalty Program, in exchange for his 2006
timeshare purchase. [Id. at pg. 10.] ¶ 2007,
Plaintiff entered into two subsequent timeshare purchases
under contract numbers 315182 and 315183 (collectively
“2007 Contracts”). [Id. at pg. 12,
beginning of 2016, Plaintiff alleges Defendants downgraded
him from Platinum to Gold status. In response to
Plaintiff's complaints about the downgrade, on June 2,
2016, Defendants produced a copy of Plaintiff's 2006
Contract, and on June 15, 2016, Defendants produced copies of
Plaintiff's 2007 Contracts. [Id. at pg. 10]
After comparing his version of the 2006 Contract and 2007
Contracts with the copies produced by Defendants, Plaintiff
alleges Defendants' records: included additional pages
not in Plaintiff's records; were missing certain
“term sheets” concerning Plaintiff's
Five-Star Elite status that conferred Plaintiff's
Platinum status; and were missing disclosures required by law
pursuant to Haw. Rev. Stat. Chapter 514E. [Id. at
pg. 11.] Plaintiff also alleges Defendants “altered the
check lists of the sales contracts, ” without verifying
or obtaining Plaintiff's consent, to indicate certain
documents were received. [Id. at pg. 12.]
alleges the following claims against Defendants: violations
of Chapter 514E for withholding disclosures regarding the
2006 Contract (“Count I”), and the 2007 Contracts
(“Count II”); and a violation of Chapter 514E for
engaging in prohibited practices in the sale of timeshare
contracts (“Count III”). [Id. at pgs.
to filing the instant Complaint, on May 19, 2017, Plaintiff
filed a complaint (“California Complaint”) in the
Superior Court of California, County of Los Angeles
(“California Action”). [Defs.' request for
judicial notice in supp. of Motion, filed 12/21/18 (dkt. no.
15) (“Request”), Exh. A (California Complaint).]
The defendants named in the California Complaint were Vistana
and Starwood Hotels & Resorts Worldwide, Inc.
(“California Defendants”). [Id. at pg.
Plaintiff's California Complaint is also based on his
2016 SPG status downgrade, and his discovery in 2016 that his
2006 Contract was not complete. [Id. at pgs. 5-6.]
Plaintiff also alleged the California Defendants failed to
turn over a public report in violation of California law, and
failed to disclose the annual assessment fees and taxes for
the property. As a result, Plaintiff sought rescission of the
2006 Contract and punitive damages. [Id. at pgs.
the case was removed to the United States District Court for
the Central District of California, the district court
granted the California Defendants' motion to dismiss the
California Complaint. [Request, Exh. B (10/19/17 order
dismissing the California Complaint (“10/19/17
California Order”)). The district court explained that
Plaintiff's claims failed because: 1) the choice-of-law
provision stated the laws of Hawai`i governed disputes
arising under the 2006 Contract, therefore Plaintiff's
claims based on California law must be
dismissed; 2) Plaintiff's exhibits attached to
the California Complaint negated his fraud claims; and 3)
Plaintiff's punitive damages claims were remedies, not
claims. 10/19/17 California Order, 2017 WL 6886721 at *3-7.
On November 2, 2017, the district court entered a judgement
against Plaintiff and in favor of the California Defendants,
and awarded them their costs (“California
Judgment”). [Request, Exh. C (California Judgment).]
Plaintiff appealed the California Judgment to the Ninth
Circuit Court of Appeals, and on April 17, 2018, the Ninth
Circuit issued its memorandum disposition affirming the
California Judgment. [Request, Exh. D (4/11/18 mem.
instant Motion, Defendants assert all claims should be
dismissed because: 1) the doctrine of res judicata precludes
Plaintiff from asserting the same claims, or claims that
could have been brought in the California Complaint; 2) the
six-year statute of limitations under Haw. Rev. Stat. §
657-1(4) bars Plaintiff's claims; 3) Plaintiff's
exhibits to the Complaint contradict his allegations that he
did not receive the timeshare disclosures; and 4)
Plaintiff's allegations fail to state a claim upon which
relief can be granted.
Consideration of Materials Beyond the
the Court will address Defendants' request for the Court
to take judicial notice of Defendants' Exhibits A through
H. As a general rule, this Court's scope of review in
considering a Fed.R.Civ.P. 12(b)(6) motion to dismiss is
limited to the allegations in the complaint. See Khoja v.
Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir.
2018), cert. petition docketed, No. 18-1010 (Feb. 4,
2019). If the district court considers materials beyond the
pleadings, “the 12(b)(6) motion converts into a motion
for summary judgment under [Fed. R. Civ. P.] 56, ” and
“both parties must have the opportunity ‘to
present all the material that is pertinent to the
motion.'” Id. (quoting Fed.R.Civ.P.
12(d)). However, a district court can consider materials
beyond the pleadings without converting the motion to dismiss
into a motion for summary judgment if either the
incorporation by reference doctrine or Fed.R.Evid. 201
judicial notice applies. Id.
Request is made pursuant to the latter doctrine, which
permits a court to take notice of an adjudicative fact if it
is “not subject to reasonable dispute.”
Fed.R.Evid. 201(b). A fact that is “generally
known” or “can be accurately and readily
determined from sources whose accuracy cannot reasonably be
questioned” is not subject to reasonable dispute.
Id. Matters of public record are not subject to
reasonable dispute. See United States v.
Raygoza-Garcia, 902 F.3d 994, 1001 (9th Cir. 2018)
(“A court may take judicial notice of undisputed
matters of public record, which may include court records
available through PACER.” (citations omitted)).
However, “a court cannot take judicial notice of
disputed facts contained in such public records.”
Khoja, 899 F.3d at 999 (citation omitted).
Defendants' Exhibits A through H are court records filed
in the California Action, and Plaintiff has not objected to
Defendants' Request, this Court will take judicial notice
of Defendants' Exhibits A through H, but only as to the
facts within those records that are not disputed in the
Whether Plaintiff's Claims are Time-Barred and the