Petition Writ of MandamusCal. Super. - 6th Dist.September 27, 2017ifs 30-300 Petition for Writ (Small Claims) c"”“’"’””“’i’”l’f""’;:"’°"E”“‘ Michael Tsivyan F SEP 2 7 2017 Petitioner (fill in the name of the person asking for the writ) V. Superior Court of Calltomla. County of Santa Clara Small Claims Division, Commisioner Lisa Steiugart Clerk w'llfifli" the "umerbemw: Respondent Appellate Division Case Number: (fill in the name of the court whose act/on arm/lug you are challenging) ‘ 1 7 A P o o 2 2 5 9 Fox Rent A Car, Inc. Real Party In Interest El Stay requested {fill in the name of any other [James in the trial court case) . (see item @ c. on page 6) Instructions ° This form is only for requesting a writ in a small claims case which does not relate to an action enforcing the small claims judgment. - Do not use this form for the appeal or trial de novo of a small claims matter or for writs on the appeal of a small claims matter. Other forms or pleadings should be used for those those kinds of actions. ' For requesting a writ relating to a court action regarding enforcement of a small claimsjudgment, you should use form APP-151, Petition for Writ (Misdemeannar, [nfiactian or Limited Civil Case). You can get that form and other forms for other writs and for appeals at any courthouse or county law library or online at www.courls.ca.gov/farms. - Before you fill out this form, read Infirmétion on Writ Proceedings in Small Claims Cases (form SC-300~1NFO) to know your rights and responsibilities. You can get form SC-300-INFO at any courthouse or county law library or online at www.courts.ca.gov/fonns. . Generally, you should file this form no later than 30 days after the date the small claims court took the action or issued the ruling you are challenging in this petition (see form SC-300-INFO for more information about the deadline for filing a writ petition). It is your responsibility to find out if a special statute sets an earlier deadline. If your petition is filed late. the appellate division may deny it. . Fill out this form and make a copy of the completed form for your records and for the small claims court whose action or mling you are challenging (called the respondent) and each of the other party or parties in the small claims case (called real party in interest). - Serve a copy of the completed form on the small claims court and serve a copy of the form and a copy of form SC-300~INFO on each real party in interest and keep proof of this service. Proof of Service (Appellate Division) (form APP-109) can be used to make this record. You can get information about how to serve court papers and proof of service from What Is Proof of Service? (form APP-109-1NFO) and on the California Courts Online Self-Help Center at www. courts. ca. gov/selfhehrserving. htm. . Take or mail the completed form and your proof of service to the clerk’s office for the appellate division of the court that took the action or issued the ruling you are challenging. Juoidal Com 0' Calliomi . sou/ts I I 0 New January 1.2013, onugmlwvgrm mam Petition for et 50-300, Page 1 or 7 Celltomla Rules 0' Court rules 8330-3 935 (Small claims) a Appellate Dlvlslon Case Name: Appellate Dlvlslon Case Number: ~~ @ @ Your InfomIation EL Petitioner (the party who is asking for the writ): Name: Michael Tsivyan Street address: 1095 Bucknam Ave. Campbell CA 95008 Street City State Zip Mailing address (ifdlflerent): Street City State Zip Phone: 140818876739 E-mail (if available): mtsivyan@gmail.com b- Petitioner’s lawyer (skip this if the petitioner does not have a lawyer for this petition): Name: State Bar number: Street address: Street City State Zip Mailing address (ifdiflererll): Street City State Zip Phone: E-mail fif available): Fax (lfavailablc): The Small Claims Court Action or Ruling You Are Challenging l am/My client is filing this petition to challenge an action taken or ruling made by the small claims court in the following case: a. Case name (fill in the small claims court case name): Michael Tsivyan v. Fox Rent A Car, Inc. b. Case number (fill in the small claims court case number): 17-SC-070483 The small claims court action or ruling I ant/my client is challenging is (describe the action taken or ruling made by the small claims court): I brought a consumer protection action against Fox Rent A Car, Inc‘ ("Fox") alleging Fox engaged in deceptive business practice of collecting fees for cashless toll roads and bridges. The complaint was filed with MC-031 declarations and exhibits, and demanded $15 in compensatory and $9,985 in punitive damages. Fox did not appear at trial. The court granted all compensatory damages but found no liability that entitles me to punitive damages stating that by not coming to court Fox did not admit truth of any facts pleaded in the complaint. The petition challenges the court's legal error in refusing to treat facts pleaded in the complaint as true. The small claims court took this action or made this ruling on the following date gill in the date): Sept. 20, 2017 If you are filing this petition more than 30 days after the date that you listed in@, explain the extraordinary circumstances that caused the delay in filing this petition: Nemuary 1.2015 Petition for Writ 50-300, Page 2 of? (Small Claims) -) Appellate Divlslon Case Name: Appellate Dlvlslon Case Number: ~~ ® The Parties in the Small Claims Court Case l/My client (check and fill in a or b): a. [El was a party in the case identified in ®. 13. El was not a party in the case identified in ® but will be directly and negatively affected in the following way by the action taken or ruling made by the small claims court (describe how yozdyaur client will be directly and negatively afi‘ected by the small claims court's action or ruling): The other party or parties in the case identified in @ was/were (fill in the names of the parties): Fox Rent A Can, Inc. Appeals or Other Petitions for Writs in This Case Did you or anyone else file an appeal about the same small claims court action or ruling you are challenging in this petition? (Check and fill in a or b): a. El No b. 1:] Yes (fill in the date the appeal/new trial is set for): Have you filed a previous petition for a writ challenging this action or ruling? (Check and fill in a or b): a. El No b. |:l Yes (Please provide the following information about this previous petition). (1) Petition title (fill in the title of the petition) .' (2) Date petition filed (fill in the date you filed this petition): (3) Case number (fill in the case number of the petition): If you/your client filed more than one previous petition, attach another page providing this information for each additional petition. At the top of each page, write "SC-300, item 9. ") Reasons for This Petition The small claims court made the following legal error or errors when it took the action or made the ruling described in © (check and fill in at least one): a. El The small claims court has not done or has refused to do something that the law says it must do. (1) Describe what you believe the law says the small claims court must do: When a defendant defaults, court must treat all facts properly pleaded in the complaint as true. Here, the court expressly refused to do so by asserting "I am not prepared to find fraud because they did not appear. By not appearing, they did not admit truth of any facts pleaded in the complain ." (2) ldentifit the law (the section of the Constitution or statute, published court decision, or other legal authority) that says the small claims court must do this: Dhawan v. Biring, CA4 963, 969 (2015) (by defaulting, defendant chooses to pay punitive damages rather than to come to court); Kirn v. Westmoore Partners, 201 CA4 267, 281 (201 1) (default confesses pleaded facts, plaintiff does not need to provide sufficient evidence to prove them, they are treated as true for the purposes of obtaining defaultjudgrnent). Nmmm 1,2013 Petition for Writ 50-300, Page 3 of 7 (Small Claims) -) Appellate Dlvlslon Case Name: Appellate Dlvlslon Case Number: ~~ (continued) (3) ldentzfiz the supporting documents (the documents fiom the small claims case) and describe what the judge said or did that shows that the court did not do or refused to do this: The complaint expressly sought $15 in compensatory damages and $9,985 in punitive See page 3 of attached Excerpts of Record ("ER“). The court enteredjudgment awarding only $15 (ER l). Please see the attached paper captioned "SC-3 00, items 10a and 10d" that describes what was said and what the court did not do and refused to do in more details. (4) If something was said at the small claims court that is relevant to your request for a writ, provide a fair summary of what was said by you and others, including the court (other than what you described above). that is relevant to your request for writ. At trial, I argued that by not coming to the trial, Fox consented to pay the full amount of damages claimed in the complaint rather than coming to court where Fox would have to explain to the judge their deceptive business practices. The Commissioner again responded that she is "not prepared" to find so. El Check here if you need more space to describe the reason for your petition and attach a separate page or pages describing it. At the top of each page, write “SC-300, item 10a. ” b. [X] The small claims court has done something that the law says the court cannot or must not do. (1) Describe what the small claims court did: The court refused to award punitive damages by stating that Fox does not admit truth of any facts pleaded in the complaint. In doing so, the Commissioner effectively spoke and acted on behalf of a party who did not come to court and thereby forfeited the opportunity to be heard. The court cannot speak on behalf on a non-appearing party and cannot represent that party's interest. (2) Identifi/ the law (the section of the Constitution or statute, published court decision, or other legal authority) that says the small claims court cannot or must not do this: Califomia Code of Judicial Ethics, Canon 3 (ajudge shallmm not create an appearance of partiality; a judge shall afford litigants an opportunity to be heard, but only to those who are entitled). (3) Identify the supporting documents (the documents from the small claims case) and describe what the judge said or did that shows that the court did this: Complaint sought $15 in compensatory damages and $9,985 in punitive. (ER 3). The court enteredjudgment awarding only $15 (ER 1). The court refused to award $9,985 in punitive damages by stating that Fox does not admit truth of any facts pleaded in the complaint. (4) If something was said at the small claims court that is relevant to your request for a writ, provide a fair summary of what was said by you and others, including the court (other than what you described above). that is relevant to your request for writ. El Check here if you need more space to describe the reason for your petition and attach a separate page or pages describing it. At the top of each page, write "SC-300. item 10b. " New January 1. 2018 Petition for Writ 56-600, Page 4 of 7 (Small Claims) '-> Appellate Dlvlslon Case Name: Appellate Divlalon Case Number: ~ ~ 0 (continued) c. El The small claims court has performed or said it is going to perform ajudicial function (like deciding a person’s rights under law in a particular situation) in a way the court does not have the legal power to do. (1) Describe what the small claims court did or said it is going to do: (2) Identify the law (the section of the Constitution or statute, published court decision, or other legal authority) that says the small claims court does not have the power to do this: (3) Identify the supporting documents (the documents fiom the small claims case) that shows that the court did or said it was going to do this: (4) If something was said at the small claims court that is relevant to your request for a writ, provide a fizir summary of what was said by you and others, including the court (other than what you described above), that is relevant to your request for writ. D Check here if you need more space to describe this reason for your petition and attach a separate page or pages describing it. At the top of each page, write “SC-300, item 10c. ” d. El Check here if there are more reasons for this petition and attach an additional page or pages describing these reasons. At the top of each page, write “SC-300, item 10d. ” ® This petition will be granted only if there is no other adequate way to address the small claims court’s action or ruling other than by issuing the requested writ. a. Explain why there is no way other than through this petition for a writ-through an appeal, fbr example- or your arguments to be adequately presented to the appellate division: This was a small claims action where I was a plaintiff, and therefore under CCP § 1 16.710(a) I cannot seek an appellate review as of right. The sole remedy available is this petition for a writ. b. Explain how you/your client will be irreparably harmed if the appellate division does not issue the writ you are requesting: This action involves small actual damages and was brought exclusively in reliance on the punitive damages provision of Consumers Legal Remedies Act ("CLRA"). Defendant contractually limited consumers' legal remedies to small claims courts. Where, as here, actual damages are small, private enforcement of CLRA in small claims courts is impossible without punitive damages. Plaintiff suffered irreparable harm by being deprived of due process when the court denied punitive damages solely because Fox did not appear at trial. "Mmtm Petition for Writ 50-300, Page 5 °'7 (Small Claims) -) Appellate Dlvlelon Case Name: Appellate Dlvlslon Case Number: ~~ Order You Are Asking the Appellate Dlvlslon to Make @ I request that this court (check and fill in all that apply): alii b.|:l (1.13 e.|ZI order the small claims court to do the following (describe what, if anything, you want the court to be ordered to do): to conduct a new trial on the issue of punitive damages, with instructions (I) to calculate an appropriate amount by treating all facts alleged in the complaint and MC-031 as true, and (2) to award costs incurred in obtaining this writ. Alternatively, to direct the court below to enter additional judgment against Fox Rent A Car, Inc. in the amount of $9,985 as was requested in the complaint, plus costs incurred in obtaining this writ. order the small claims court not to do the following (describe what. if anything, you want the court to be ordered NOT to do): issue a stay ordering the small claims court not to take any further action in this case until this court decides whether to grant or deny this petition (describe below why it is urgent that the small claims court not take any further action and check the Stay requested box on page I of this form): [My client: (1) El asked the small claims court to stay these proceedings, but the small claims court denied this request (include in your supporting documents a copy of the small claims court '5 order denyn your requeslfor a stay). (2) El did not ask the small claims court to stay these proceedings for the following reasons (describe below why you did not ask the small claims court to stay these proceedings): take other action (describe): grant any additional relief that the appellate division decides is fair and appropriate. NewJanuaty‘l,2018 Petltion for Writ 30-300, Page 6 of7 (Small Claims) -) Appellate Division Case Name: Appellate Division Case Number: ~ Supporting Documents ® Are the following documents attached as required by rule 8.972(b)(1) (Check a or b): The small claims court ruling being challenged in this petition All documents and exhibits submitted to the small claims court supporting and opposing you/your client’s position Any other documents or portions of documents submitted to the small claims court that are necessary for a complete understanding of the case and the ruling being challenged? . E Yes, these documents are attached. . E] No, these documents are not attached for the following reasons (explain why these documents are not attached and give a fair summary of what is in these documents. Note that rule 8.972 provides that, in extraordinary circumstances, the petition may be filed without these documents, but the petitioner must explain the urgency and the circumstances making the documents unavailable): Number of pages attached to this form, if any: 97 Date: > L I awyer ’5 name (if any) Lawyer ’s signature declare under penalty of perjury under the laws of the State of California that the information above and on any attached pages providing further responses to the questions above is true and correct. Date: September 27, 2017 Michael Tsivyan ’ Type or print petitioner is name Petitioner is signature NwJarmary 1‘ 201a Petition for Writ 80.300, Page 7 of 7 (Small Claims) For your protection and privacy, please press the Clear This Form button after you have printed the form. ~ SC-300, items 103 and 10d This Court is asked to grant a writ to resolve the following question of first impression: QUESTION PRESENTED Under California Code of Civil Procedure ("CCP") § 116.520(b), in an uncontested small claims action plaintiff is still required to present evidence to "prove" his or her claim. What legal standard should a small claims court utilize with respect to facts alleged in the complaint to determine whether the plaintiff does "prove" his or her claim? Stated differently, in uncontested small claims trial should the facts properly pleaded in the complaint be treated as true? EXCERPTS OF RECORD The petition is accompanied with paginated Excerpts of Record ("ER") consisting of lower court‘s judgment (ER 1), complaint (ER 2-4), MC-031 declarations (ER 5-6), documents presented at trial (ER 7-8) and exhibits l-l 1 that were attached to MC-031 (ER 9-99).m This is a consumer protection action brought against a car rental company for its deceptive business practice of collecting fees for cashless toll roads and bridges. These roads and bridges are equipped with a system that identifies car license plate numbers, and thereafter the car owners can pay the tolls by mail, by phone, online or by setting up an account with automatic payments. Those who rent cars do not receive bills by mail, but can pay online or by phone before driving on a cashless toll road/bridge or within 72 hours thereafter. (ER 11). Car renters can open a Short-Term Account ("STA"), register the license plate of the rented car and provide a credit card number which will be charged automatically during two weeks. (ER 11). Because these toll payment methods are new, too many consumers do not know anything about them. The rental companies carefully conceal this information in order to contractually impose exorbitant fees on the consumers several weeks afier they return the rental cars. (ER 23-3 1 , 36-38). Here, the action was brought against Fox Rent A Car, Inc. ("Fox"). Fox offers its customers to pay for some electronic tolls by purchasing a "PlatePass All-Inclusive" package ("PlatePass") for $11.49 per each rental day. (ER 8, 15). Even though Fox knows full well that the customers can pay the tolls themselves, Fox affirmatively misrepresents that PlatePass is the 1 SC-300, items 10a and 10d exclusive way to pay for cashless toll roads and bridges. (ER 8, 15). Fox misrepresents PlatePass benefits by falsely claiming that if a customer declines to purchase PlatePass, he "will be charged" administrative fee of $15 per each toll, in addition to the toll charges. (ER 15). In May 2017 I rented a car from Fox for four days, and twice crossed SR-520 Bridge in Seattle, WA. I was unaware of any payment methods and believed that Fox would allow me to pay the toll by forwarding me the toll bill. Instead, Fox charged me $7.25 for tolls. plus $30 in "administrative" fees that Fox later agreed to reduce by 50% to $15. (ER 9-10, 17). I brought an action under the Consumers Legal Remedies Acts codified in California Civil Code ("CC") § 1750 et seq. alleging that (1) Fox knowingly misrepresents PlatePass benefits and the true purpose of the administrative fees in violation of CC § l770(a)(5); and (2) the contractual provision regarding the administrative fees is unconscionable in violation of CC § l770(a)(19). (ER 3,5,6). The complaint demands $15 in compensatory and $9,985 in punitive damages under CC § 1780(1) and (4). (ER 3,5,6). To prove that Fox's business practices deceive a reasonably prudent consumer and to establish reprehensibility of Fox's conduct, I supplemented the complaint with (l) publications of Washington Post, Miami Herald and others showing large number of consumer complaints across the nation, (2) a publication showing Fox was sued for the very same business practices before, and (3) court documents fiom a pending identical consumer protection action brought against Dollar. (ER 23-33, 66-99). To prove reasonableness of the demand of $9,985 in punitive damages, I also supplemented the complaint with court documents from a pending similar consumer protection action brought by public attorney general against Hertz seeking civil penalties in the amount of $5,000 per each customer per each violation of the consumer protection laws, including CLRA's § 1770(a)(5) and (19). (ER 60-61, 65). Fox did not show up at trial and did not file any paper. The court granted all compensatory damages, but found that l was not entitled to punitive damages on the ground that the court is "not prepar " to find fraud because Fox did not appear. I requested the court to explain what elements of the cause of action under CLRA were not proved by the facts alleged in 2 SC-300, items 10a and 10d the complaint. The court declined to answer, but stated that by not appearing at trial Fox does not admit the truth of any facts pleaded in the complaint. REASONS TO GRANT A WRIT 1) The small claims court made a legal error in refusing to treat all facts properly pleaded in the complaint as true When a defendant does not appear at trial in a small claims court, plaintiff must still "prove" his or her claim. CCP § 116.520(b). This statute, however, does not specify the standard of proof with respect to facts pleaded in the complaint. I found no case law that interprets § 11652003). This Court should grant a writ because it raises an issue of first impression: whether in uncontested small claims trial the court must treat facts pleaded in the complaint as true. In courts of general jurisdiction, defendant's non-appearance triggers a default. To obtain a default judgment, defendant still needs to "prove up" his claim for damages by showing that the claim is based on a valid legal theory that entitles him to the amount demanded Kim v. Westmoore Partners, Inc., 201 Cal. App. 4th 267, 272 (2011). "[I]f the well-pleaded allegations of the complaint do not state any proper cause of action, the default judgment in the plaintiffs favor cannot stand,“ Id. at 281. The complaint is not well-pleaded when it (1) pleads facts contradicting exhibits attached to the complaint; (2) fails to plead facts to establish a requisite element of a cause of action; or (3) makes vague and conclusory allegations that do not amount to any cognizable cause of action. Id. at 282-286. Without these or similar defects, the defendant's failure to answer has the same effect as an express admission of the matters well pleaded in the complaint. Id. at 281. "[T]he default confesses those properly pleaded facts, a plaintiff has no responsibility to provide the court with sufficient evidence to prove them-they are treated as true for purposes of obtaining a default judgment." Id. (emphasis in the original). It appears that the CCP § 1165200)) requirement to "prove" stems from the fact that complaints in small claims actions are simplified, filed by unrepresented litigants who make their allegations at trial by simply answering the judge's questions. The intent of the requirement to "prove" is to allow the judge to make sure that plaintiff-a lay person with little or no knowledge 3 SC-300, items 102! and 10d of law-has a legally cognizable cause of action. As in courts of general jurisdiction, "without any opposing party to point out the excesses, it is the duty of the court to act as gatekeeper, ensuring that only the appropriate claims get through." Id. at 272. Since the role of the judge to act as a gatekeeper is the same in small claims court and in courts of general jurisdictions, there is no logical reason to have different standards with respect to facts properly pleaded in the complaint. Thus, the small claims court, too, must treat defendant's non-appearance "as an express admission of the matters well pleaded in the complain ." Here, the court refused to treat all facts pleaded in the complaint as true by stating so expressly. Specifically, the court said that by not appearing Fox "did not admit" the truth of any facts pleaded in the complaint, and on this basis the court disregarded all of those facts. Thus7 under Kim the court committed a legal error and for this reason the case shall be remanded for further proceedings. To prove that Fox misrepresents to the consumers the true nature of the administrative fees, I provided documents from Maor v. Dollar showing specific facts that only a tiny portion of the administrative fees collected is spent on administration of toll payments. (ER 6, 84-92.). Because Dollar's and F ox's administrative fees are identical, and because the consumer protection claim in Moor survived demurrer (ER75-78), the facts pleaded here are legally sufficient to constitute a cognizable cause of action and thereby establish legal entitlement to all types of damages authorized by CLRA's § 1780, including punitive damages. Accordingly, the decision of the court below that I am not legally entitled to punitive damages should be reversed and the case should be remanded with instructions to determine an appropriate amount based on all facts properly pleaded in the complaint which the court below must treat as true. 2) The small claim court contradicted itself by finding CLRA liability for entitlement to compensatory damages, while at the same time finding no liability for entitlement to punitive damages A separate reason for granting a writ is the fact that the decisions of the court below not only plainly contradict the law in Kim, but plainly contradict each other. The court granted the SC-300, items 10a and 10d full amount of compensatory damages finding liability under CLRA-the sole cause of action litigated and alleged in the complaint. Since the court found liability under CLRA, the court thereby found that Fox engaged in deceptive business practices, i.e. committed a fraud. Thus, the Commissioner contradicted herself when on one hand she found fraud liability for entitlement to compensatory damages, and yet she asserted "I am not prepared to find fraud" for entitlement to punitive damages under the exact same statute and the exact same facts. Thus, this Court should grant a writ to resolve the Commissioner's self-contradiction. 3) The amount of punitive damages demanded in the complaint is well within constitutional and statutory limitations, and thus shall be granted in full Constitutional limits on punitive damages are based on three factors: (I) the degree of reprehensibility of defendant's conduct; (2) the ratio between the punitive and actual damages; and (3) civil and criminal penalties for like conduct. Bardz’s v. Oates, 119 Cal. App. 4th 1, 21-24 (2004). The first factor asks whether (i) the harm caused was physical as opposed to economic; (ii) the tortious conduct evinced a reckless disregard of the health or safety of others; (iii) the target of the conduct had financial vulnerability; (iv) the conduct involved repeated actions or was an isolated incident; and (v) the harm was the result of “intentional malice, trickery, or deceit, or mere accident.” Id. at 21. Here, F ox‘s conduct does not involve physical harm, health or safety of others. Fox's conduct is part of a massive multi-state multi-million dollar scheme of fi-aud, trickery and deceit. (ER 84-92). Fox had already been sued for the exact same deceptive business practices in a consumer protection class action. (ER 32-33). The lesson that Fox learned fi'om that action is not to conform its conduct to the consumer protection laws, but to restrict the consumer's legal remedies so that no class action can be brought again. (ER 20-21). F ox restricted legal remedies further by permitting customers to seek relief in small claims courts only. (ER 20-21). Fox thereby shielded itself against the mandatory attorney's fee shifiing provision of CLRA's § 1780(e) that incentivizes attorneys to take CLRA cases that involve only small amounts of actual damages. Thus, the degree of reprehensibility is very high. 5 SC-300, items 10a and 10d The second factor looks into the ratio between the punitive and actual damages. This factor, however, carries little weight where the amount of actual damages is very small. Here, the amount of actual damages is only $15 and obviously "does not fully reflect the outrageousness of the behavior." Id. at 26. Awarding $150 or even $300 would not in any way serve the key function of punitive damages: deterrence. Id. Thus, the second factor is wholly irrelevant. The third factor concerns the amount of criminal or civil penalties for like conduct. Here, the complaint seeks $9,985. This amount is almost identical to the amount of civil penalties sought by public attorney general in People v. Hertz: $5,000 per each customer per each violation of the California's consumer protection statutes. (ER 65). Here, Fox violated CLRA twice because it charged the administrative fees twice for each of the two crossings of SR-520 Bridge in Seattle. (ER 10). Thus, awarding $9,985 in punitive damages is well within the constitutional as well as statutory limits that the California legislature deemed appropriate. Because the amount of punitive damages was expressly sought and quantified in the complaint, Fox knew about it and therefore cannot possibly suffer any conceivable prejudice fi'om the award. By not appearing Fox chose to waive its defense and pay the full amount of punitive damages demanded in the complaint. Dhawan v. Biring, Cal. App. 4th 963, 969 (2015). Accordingly, this Court should remand the case with instructions to award Plaintiff $9,985. CONCLUSION Denying punitive damages in CLRA actions that involve small amount of actual damages renders private enforcement of CLRA impossible. This is particularly so where, as here, CLRA violators contractually restrict consumers' legal remedies to small claims courts. It is absurd to permit violators of CLRA to avoid punitive damages by simply not coming to court. This Court should grant a writ and remand the case with instructions to enter additional judgment against Fox Rent A Car, Inc. in the amount of $9,985, plus costs in obtaining this writ. DONE September 27, 2017. s) 5 Michael Tsivyan. 6 / Name one Maltese cream SUPERIOR COURT OF CAUFORNIA COUNTY OF SANTA CLARA 191 North First Street San Jose, California 95113 80-130 SMALL CLAIMS CASE NO; 1780070483 NOTICE To ALL PLAINTIFFS AND DEFENDANTS: Your small claims case has been decided. if you lost the case, and the court ordered you to pay money, your wages. money. and property may be taken without further wamlng from the court. Read the back of this sheet for important Information about your rights. AVISO A TODOS LOS DEMANDANTES YDEMANDADOS: su case he sldo muelto por la cone para rocIamos judloIaIee menores. Si la oorte ha decldldc on an contra y ha ordenado qua uated pague dinero, le pueden union on salarlo, eu dInero, y ctras cases de eu propledad, sin avlso adlclonal por parte do eat: cone. Lea el memo de eete tormulorio pare ohtener Intormacidn de Importancla acerca de sus derechoe. DEFENDANTIDEMANDADD‘ (Name, street midis”, and telephone numberol 9am) Fox Rent A Car Inc PLAINTFFIDEMANDANTE (Mm mm amide Michael Tsivyan number of em): 1095 Bucknarn Ave Serve 0n Registered Agent Solutions Inc CAMPBELL CA 95008 1220 5 st Suite 150 Sacramento CA 95811 TelephoreNe: Telephone No; Telephone No. Telephms No. [I See ahached sheet for additional plaintifis and defendants Date of Hearln9209I20/2017 Hearing officer: COMM. LISA STEINGART NOTICE OF ENTRY OF JUDGMENT Judgment was entered as checked below on 09/20/2017 1. 95.01:" 1 1 Apps DEED Efendant game, If more than anal: Fox RantA Car, inc shall Q1 plaintiff (name, if more than anei: Michael Teflon 15 rlncl land: 10 .65 costs on Ialntiff's claim. TOTAL 120.65 Defendant does not owe plaintiff any money on plaintiffs claim. Plaintiff (name, ifmore than one): Michael Tsivyan shall pay defendant (name, if more than oneizFox Rent A Car, [no $ principal andz$ costs on defendant‘s claim. Plaintiff does not owe defendant any money on defendant's claim Possession of the following property is awarded to plaintlfi (describe propeny): Payments are to be made at the rate of. $ per (specify pe/r‘od}: beginning on (date. and on the (speciiy day): day of each month thereafter until paid In full. If any payment is missed. the entire balance may become due immediately. Dismissed in court El with prejudice. I] without prejudice Aitcmcy-Ciient Fee Dispute (Attachment to Notice of Entry of Judgment) (form 50-132) is attached. Other (specify): . - This judgment results from a motor vehicle accident on a Callfomia highway and was caused by the judgment debtor's operation of a motor vehicle. If the judgment is not paid, the judgment creditor may apply to have the judgment debtor's driver‘s license suspended. 1. Enforcement of the judgment is automafimlly postponed for 30 days or. if an appeal is filed, until the appeal is decided. 2. This notice was personally delivered to (insert name and date): 09l20117 PLT. 3. CLERK'S CERTIFICATE OF MAILING-I certify that I am not a party to this action. This Notice of Entry of Judgment was mailed first class. postage prepaid, in a sealed envelope to the parties at the addressee shown above. The mailing and this certification occurred at the place and on the date shown below. DEF. Clerk, by M @- Melanle Bueno DUE DD Place of mailing: San Jose, Califomia Date of mailing: 09/20/2017 .‘ . . Deputy The county provides small claims advieor services free of charge. Read the information sheet on the reverse. ~ FormAdcptedicrAltemetiveMmdatoryUee .IudidalComcllofCelicmia SO-‘IGOIRBVJUIY 1. 20101 code 01 CIVII Procedurao 51 16.310 menu’s/mayo: NOTICE OF ENTRY OF JUDGMENT ~ ~ ~ (Small Claims) ER1 SC 100 Plaintiff's Claim and ORDER clemmmlmhenlemma. to Go to Small Claims Court $Nffi$§ Notice to the person being sued: " ' You are the defendant if your name is listed in ® on page 2 of this form. ~ The person suing you is the plaintiff. listed in G) on page 2. AUG 0 4 2U” ' You and the plaintiff must go to court on the trial date listed below. If you Clerk Of the Court do not go to court: You may lose the case. mm” cw" °1 0“ “My °’ ”Egg-y ' If you lose, the court can order that your wages, money, or property be $5 taken to pay this claim. (9’ ' Bring witnesses, receipts, and any evidence you need to prove your case. F”, ,,, com ”me and $22,“, ‘ Read this form and all pages attached to understand the claim against you Superior Court °f Califomla, County °f and to protect your rights. S ‘ ‘m Cgm't Avlso al Demandado: ‘fgflDiifi'ygt ' Usted es el Demandaldo si su nombre figure en (2) de la pdgina 2 de este 38311083 CA 95113 formulario. La persona que lo demanda es el Demandante, la que figure en 6) de ‘21 péglna 2‘ Court file In case number when form 15 filed. ' Usted y el Demandante tienen que presentarse en la corte en la fecha del Case Number: juicio indicada a coutinuacion. Si no se presents, puede perder el caso. : ' a c 0 ,7 0 4 8 3 ‘ Si pierde el caso la. corte podrla orderlar que le quiten de su sueldo, dinero u Case Name: otros bienes para pagar este reclamo. ' Lleve testigos, recibos y cualquier otra prueba que necesite para probar su caso. ' Lea este formulario y todas las péginas adjuntas para entender 1a demanda en su contra y para proteger sus derechos. Order to Go to Court The people in ® and ® must go to court: (Clerkfillr out section below.) Trial e T‘im Derfirent Name and address of court, if different from above Limp ,, 2. 3. DateAUG fl 4 2N7 Clerk, by , Deputy ${5 “v Instructions for the person suing: $3 . You are the plaintiff. The person you are suing is the defendant. - Befimz you fill out this form, read form SC-lOO-INFO, Information fiar the Plainnfi to know your rights. Get SC-l 00-iNFO at any courthouse or county law library, or go to www.courts.ca.gov/smallcla!ms/forms. - Fill out pages 2 and 3 of this form. Then make copies of all pages of this form. (Make one copy for each party named in this case and an extra copy for yourself.) Take or mail the original and these copies to the court clerk’s office and pay the filing fee. The clerk will write the date of your trial in the box above. . You must have someone at least lS-not you or anyone else listed in this case-give each defendant a court-stamped copy of all five pages of this form and any pages this form tells you to attach. There are special rules for “serving,” or delivering, this form to public entities, associations, and some businesses. See forms 50104, 801043, and SC-104C. - Go to court on your trial date listed above. Bring witnesses, receipts, and any evidence you need to prove your case. . . , - smart in mgmlfifmgwmfw .Piaintlff's Claim and OR? ER . agel ofs coaamvnmm’u "unusual. to Go to Small Claims Court ‘9 ”mt" “° ”‘9’ (Small Claims) ER2 Plaintiff (list names): Case Number: MichaelTsivyan :6 so 070483 6) The plaintiff (the person, busjness, or public entity that is suing) is: ~ ~ Name: Michael Tsivyan Phone; (408)887-6739 Street address: 1095 Bucknam Ave. Campbell CA 95008 Street City State ZIP Mailing address (ifdzfi‘erent): Street Criy State Zip If more than one plaintiff, list next plaintiff here: Name: Phone: Street address: . Street City State Zip Mailing address fifdifiizrent): Street City State 2!): El Check here if more than twoplaintzfl's and attach fbrm SC-IOOA. El Check here if either piaintzfl' listed above is doing business under afictitious name. If so, attach form SC-103. [1 Check here if any plaintiffs a "licensee” or “deferred deposit originator" (omrday lender) under Financial Code sections 23000 et seq. (:9 The defendantlthe person, business, or publlc entity belng sued) ls: Name: FOX RENT A CAR, INC. Phone: (323)593-7489 Street address: 5500 West Century Blvd. Los Angeies CA 90045 Street City State l Mailing address (zfdw’erent): CA Street City State ZIP lithe defendant Is a corporation, limited liability company, or public entity, list the person or agent authorized for service of process here: Name: REGISTERED AGENT SOLUTIONS, INC. Job title, if known: Address: 1220 S St., Suite 150 Sacramento CA 95811‘ Street City State Zip [:1 Check here if your case is against more than one defindant. and attach form SC-100A. [:1 Check here if any defendant is on active military duty, and write his or her name here: 6) The plaintiff claims the defendant owes $ 10,000 . {Explain below): a. Why does the defendant owe the plaintifi‘ money? I was charged $15 in administrative fees for 2 crossings of SR 520 Bridge in Seattle, WA. Exhibit 1. Affirmative misrepresentation and knowing omission of material information with intent to defraud consumers. Exhibits 2, 3. When did this happen? (Date): May 17, 2017 b. If no specific date, give the time period: Date started: Through: c. How did you calculate the money owed to you? (Do not include court costs or fees for service.) $15 in compensatory damages, $9,985 in punitive damages. Cal. Civ. Code. §§ 1760, 1780(a). Please see attached MC~031 for justifications of the punitive damages. IX] Check here if you need more space. Attach one sheet of paper orform MC-031 and write "50100, Item 3 " at the tap. WWW ”“7 Plaintiff’s Claim and ORDER to Go to Small Claims Court SC-100,Page2oi5 (Small Claims) > -> ER3 Pl ' at r .- N Militia lily?” t. in; “W o 7 o 4 8 3 ~ ~ Q) You must ask the defendant (in person, in writing, or by phone) to pay you before you sue. If your claim is for possession of property, you must ask the defendant to give you the property. Have you done this? [X] Yes D No if no, explain why not: (5) Why are you fillng your claim at this courthouse? This courthouse covers the area (check the one that applies): a. El (1) Where the defendant lives or does business. (4) Where a contract (written or spoken) was made, (2) Where the plaintifi’s property was damaged. signed, performed, or broken by the defendant or (3) Where the plaintiff was injured. where the defendant lived or did business when the defendant made the contract. b. D Where the buyer or lessee signed the contract, lives now, or lived when the contract was made, if this claim, is about an offer or contract for personal, family, or household goods, services, or loans. (Code Civ. Prue, § 3 95 (11).) c. Cl Where the buyer signed the contract, lives now, or lived when the contract was made, if this claim is about a retail installment contract (like a credit card). (Civ Code, § 1812.10.) d. [:1 Where the buyer signed the contract, lives now, or lived when the contract was made. or where the vehicle is permanently garaged, ifthis claim is about a vehicle finance sale. {Civ Code, § 2984.4.) e. D Other (specify): @ List the zlp code of the place checked In © above {lfyau know): 95110 ® Is your claim about an attorney-client fee dispute? [I Yes E No If yes. and if you have had arbitration, fill outform SIT-101, attach it to this form, and check here: [I Are you suing a public entity? [I Yes IZI No If yes, you mus-(file a written claim with the entilyfirst. [:1 A claim was filed on (date): If the public entity denies your claim or does not answer within the time allowed by law, you can file this firm. Have you filed more than 12 other small claims within the last 12 months in California? |:| Yes IE] No lfyes, the filing fee for this case will be higher. @ Is your clalm for more than $2,500? [3] Yes [:1 No If yes. I have notfiled, and understand that I cannot file, more than two small claims casesfor more than $2,500 in California during this calendar year. I understand that by filing a claim in small claims court, l have no right to appeal thls claim. I declare. under penalty of perjury under California State law, that the information above 0 any attachments to this form is true and correct. % Date: August 1, 2017 Michael Tsivyan > Plaintlfi’ types or prints name here Plaihgfi‘sigm here Date: Second plaintiff types or prints name here Second plainnflsigm here Requests for Accommodations Assistive listening systems, computer-assisted real-time captioning, or sign language interpreter services are available if you ask at least five days before the trial. Contact the clerk’s office for form MC-4l 0, Request for Accommodations by Persons With Disabilities and Response. (Civ. Code, § 54.8.) Rmmimml-m" Plaintiff's Clalrn and ORDER to Go to Small Claims Court 50-100: P9993“ 5 (Small Claims) -> ER4 some, 3): W 3 MC-031 - PLAINTIFFIPEl'mONER: Michael Tsivyan L are Nines: 070 48 3 DEFENDANT/RESPONDENT: Fox Rent A Car, Inc. ~ * DECLARATION (777/5 form must be attached to another form or court paper before I! can be filed in court.) Some toll roads no longer allow drivers to pay toll with cash. A system takes a photo of cars‘ license plates and then sends bills to the cars' registered owners. Car rental companies use this system to make large profits by misleading the customers to agree to "administrative fee" charges on top oftoil charges. The deception is effectuated by drafting a contract of adhesion that (1) omits material information about the cashless toll roads, and (2) discloses the administrative fees in vague and misleading terms. Exhibits 7,8. The car rental companies work closely with state authorities collecting toils, and are fully aware that the drivers can simply pay tolls online by opening a Short-Term Account ("STA"), registering the rental car‘s license plate and a credit/debit card number to pay for tolls. Exhibit 2. Yet, the rental companies carefully omit the information about the customer's ability to pay for tolls online. Exhibits 7,8. Fox-Rent-A-Car went beyond omissions. It affinnatively misrepresents that the exclusive way to avoid paying administrative fees is to purchase a so-called "PlatePass All-inclusive service" ("PlatePass") which costs $11.49 per each day. Exhibit 3 (representing that if customers "choose not to purchase the optional PlatePass" and utilize cashless roads, they "will be charged" additional $15 per each toll). By omitting the material information about the customer's ability to pay for cashless toll roads, and by affirmatively misrepresenting that the PlatePass is the exclusive option to avoid administrative fees, Fox affirmatively deceives its customers about the actual benefits of the PlatePass in violation of Cal. Civ. Code § 1770(a)(5). Given that the contract is one of adhesion where customers have no bargaining power, and given that Fox is fully aware that at the time the contractual agreement is signed an average reasonable consumer lacks material information directly affecting his decision to agree to administrative fees, the fee provision is procedurally and substantively unconscionable in violation of Cal. Civ. Code § 1770(a)(l9). Actual damages are $15. Exhibit 4. Such a small amount is inadequate remedy because it will not deter Fox in any way, and thus will not "protect consumers against unfair and deceptive business practices." § 1760. To have any meaningful deterrent effect, the Court should award punitive damages under § 1780(a)(4). In Doherty v. Hertz Corp. a class action settlement obligated Hertz to pay over $15M for defrauding between 1.6-1.8 million renters who paid administrative fees and PlatePaas charges, in violation of New Jersey Consumer Fraud Act. 2014 WL 2916494, at *7, n.10 (D.N.J. June 25, 2014). This included over $3M in attorney fees. Here, Fox has protected itself against class actions, and the sole court remedy is a small claims action where consumers cannot be represented by attorney, and damages cannot exceed $10K. Exhibit 6. The Court should award $10K. I declare under penalty of perjury under the laws of the State of California that the foregoing Is true and correct Date: August 1, 2017 ~ Michael Tsivyan . (mas 0R awn-r NAME] (commas or oscmamn D Attorney for Plaintiff E] Petitioner CI Defendant D Respondent [:1 Other (Specify): PTA mam" ‘ ATTACHED DECLARATION Monet [Rev July 1.2005] Page! 011 ER5 Mic-031 - PLAlN‘nFFIPEni-loNER: Michael Tsivyan CASE NUMBER: DEFENDANT/RESPONDENT: Fox Rent A Car, Inc. NSC-070483 b~ ~ ~ DECLARATION (Wis form must be attached to anothsrform or court paper before It can be filed in court) This declaration supplements the MC~031 declaration that was filed contemporaneously with the complaint. Plaintiff hereby brings to the Court‘s attention documents fi'om judicial proceedings. Plaintiff believes this Court will find these documents relevant because they involve the exact same misconduct of car rental companies. On 3/1/2017, the city of San Francisco brought a consumer protection action against Hertz in the superior court of San Francisco. The complaint alleges Hertz defiaudcd tens of thousand of consumers by requiring them to pay charges in addition to tolls for crossing Golden Gate Bridge. The bridge has been converted, as has been the SR-SZO bridge in Seattle, to all electronic tolling. Car renters have an option to pay the tolls before and after crossing Golden Gate Bridge and SR-520. Yet, the rental companies deliberately conceal this information to mislead consumers and make millions of dollars in profits, in violations of Cal. Civ. Code § l770(a)(5) and (l 9). Exhibit 9, at 4, 12, 21-23, 27-28. As Fox, Hertz insulated itself from growing chorus of anger over these practices by requiring customers to waive their right to ajury trial and waive their right to participate in a class action lawsuit. Id. at 14. On 8/6/2015, a consumer protection class action was brought against Dollar in the federal district court for the southern district of Florida. The complaint alleges Dollar defrauded its customers by charging, as here, $15 administrative fees for each event when the customers utilize cashless roads or bridges. The fraud is efiectuated through Dollar's intentional misrepresentation of the true purpose of "administrative fees, " in violation of F lorida‘s consumer protection laws. Exhibit ll, at 1-3, 11-12, l4, l9. Courts have determined that misrepresentations of this kind amount to deceit, Le. a practice that is immoral, unethical, oppressive, unscrupulous and substantially injurious to customers. Exhibit l 0, at 10-13. Here, Fox in the identical fashion misrepresents to its customers that the additional fees on top of the toll charges are "administrative" in nature in order to create a false impression that these fees are used solely to process toll payments. This is not true. The administrative fees that Fox collects from the customers are vastly disproportionate to the actual costs incurred by Fox in processing toll payments. Fox retains vast majority of these fees to itself. Exhibit 1 l, at 1243. Fox thereby affirmative misrepresents "characteristics" of its services in violation of Cal. Civ. Code § 1770(a)(5). I declare under penalty of perjury under the laws of the State of California that the foregoing ls true and correct Date: September 12, 2017 H a. . / Michael Tsivyan ~_ [TYPE OR PRINT NAME} (SIBNATURE 0F DECLARANT) ~ El Attorney for El Plaintiff El Petitioner Cl Defendant l:l Respondent El other (Specfiy): ‘m‘émzwlcsnamm? ATTACHED DECLARATION MG-OSIWJIMLNDSI P115910” ER6 the Fat September 12, 2017 RWEBWEIB- Michael Tsivyan 9 1g 1095 VBucknam Ave. SEP 1 5 2017 Campbell, CA 95008 Clerk f Tel: (408)887~6739 «no “the Maggi; cm E-mail: mtsivyan@scu.edu “am TO: Clerk of Santa Clara County Superior Court, Small Claims Division 191 N. First Street, San Jose, CA 95113 RE: TSIVYAN v. FOX RENT A CAR, INC, case # 17-SC~070483 Dear Clerk, Attached please find a MC-031 declaration with three- hits» el supplementing the complaint in case # l7-SC-0’70483. These supplemental declaration and exhibits do not make any additional claims and do not amend the complaint. They consist of publicly available documents from other judicial proceedings that the presiding judge will likely find highly relevant during the trial scheduled for September 20, 2017. Copies of the declaration and the “Xhil’ilfi‘fi’lll,b§i delivered to the defenggntv before'tfiefil‘Fi‘fili“wmm”m“mm“W"‘ mm : “mm: . in «4 vi “highwwunumg new} W, M. a A“, _ a». .Waya Please do not hesitate to contact me at (408)887-6739 if you have any questions. Best regards, Michael Tsivyan. ER? ~ ~~ ~ ~~ ~ ~~~ ~~~ ~~ ~~~ o r : , . , ' Foixmwsm JOSE Amparo Fog SEAT ti’PlOfiT FOX RENTA CA 1569AIRPORTBLVD 316030UTH160TH S‘I‘FIEEI' (“mm ’1 [CAR RENTAL CENTER [(ON AIRPORT) Roadside 9 (am ass-am . SAN JOSE CA 95110 - -- . -- as Cuet. Servlooo (ass) art-e413 RENTER DETAILS UNIT DETAILS RA #3 SJc-407599 Name : MICMfl TalvyAN uurrr. TH812516 3"“ 0e : 39202077 CA . Exp. Date: 01/28/2022 MODEL: 2017 SIENNA L7 Pe cos». xxxx-noot-xxxx-aza MAKE. TOYOTA RED "momma; AUTHORIZED DRIVEFuS)" I ”0,. 7WD.” Mumboliotedon centred turnout Ialondbezt der ~ won a valid driver’s leioenae. 039mm lawn maulhorizegrdurivor Vim: monsoon-1831251 SHEKED ‘3”. fl. . . . . , _ voids any/ell coverages and waivers. mugs OUT: 14902 ”Ell-“$5,. ., 17/20“ 11'19fiM Additional om: N o N E Authorized FUEL OUT: Full ‘iglinfxléig . 05/2130 ? “For all the provisions herein the term 'Ftenter', or ur‘ . ‘ shall mine any and all addtioml authorized adv-$.31.- I” ”ATE’T‘ME N Important Information : - RATES D0 nor lNCLUDE ms AND ARE BASED on A MINIMUM RENTAL or 24 nouns PLUS MILEAGE. Dal char 5 e to consecutive 24.1mm .. M a. "i9 “W and minute the rental begins. Each portion ot a 24-hour period shall be considered a 24-hour period. I 9° 5"” W “9 ' Renter must immediately report all damage to the lessor and all acddenis to both the lice and the lessor. Renter must also com late a lessor accident report. ‘ Vehicle renmla originating In the states C , WA, 1:133 NV 00 UT can 011i driven In the states of CA. WA. AZ. NV. CO, UT. FI. NM. WV. ID. TX. OK, KS, NE. SD. ' Fox Rent A Car nae waived munmred/mderinsu motorist coverage and some is not wailable to Flentor. operator, or passengers. £0110E ABOUT YOUR FINANCIAL RESPONSIBILITY AND OPTIONAL DMGE WAIVEB In addition to other obligations under the Calliornin Civil Code and California law, if optional Loss Damage Waiver (LDW) Is not purchased and subject to limitations In Calitmnie law, Renter shall be responsible tor demo ea or losses related to the vahiote as follows: (a) You are responsible for all willslon damage to the vehicle even someone else caused it or the cause is unknown (in) You be wfl nslhle iorthett at the vehicle or damages resulting from the their at the vehicle it you or amhorized culverts) tail to exercise ordinary are oi the vehicle during the rental period. 8: You are responsible for the cost at repair up to the lair market value at the vehicle. administrative lees, towing. storage and impound teee (d) You are responsible for the iirst $5 at vandalism that is not a direct result of the actual theft of the vehicle. Your own insurance or the issuer oi the credit can-I you use to pay tor the rental may cover all or part at your financial rasponstb ‘ (or the vehicle. You should check with your Insureme ororedit card leaner to find out about your coverage and the amount of the deductible, fl any. for which cu may be liable. 1 you use a credit card thetprovides coverage for your potential liability. you should check with the issuer to dalennlne it you must ilrat exhaust the coverage ilm oi your own insurance betore the credit card coverage applies. it you accept at time oi rental and pay lJJW upon return at the Vehicle or termination of the Agreement. FOX waives the ri hi to collect 1mm you for dame e or loss to the Vehicle it you stayed in compliance with tame and conditions at the rental Agreement. LDW is not insurance. in addition. LDW Ii not proud you ll you comm any at the arm listed in paragraph 6 on the revemo side of this Agreement The wet or an optional LDW is $ NOT APPLICABLE The mowed LDWIaeptionai. fil’ii‘iUL‘iUDE $560.14 DDDCIUJJJDDDI UNLIMITED MILES ”CHARGE SUMMARY" Miles Unlimited nouns) @ $5.05 4 Dayis) @ $24.02 $93.03 Day(s) @ $24.02 $3,”.i TIME s MILEAGE: eons FUEL CHARGE 6 0.99/gei 0.00 CA TOURISM 3.50% @ 3.50% 10.51 SJCCONCHJP/o @ 11.11% 33.87 CA TAX 3.10 925% ® 925% 30.91 1 DFIOP @ $204.17 1X $204.17 4 VLF @ $1.15 lDay $ 4.60 4 CFC @ s 7.50 [Day 3 30.00 By initlailng here I agree to purchase each of the above coverages and that ideollned any other coverages i have been offered. I oertitythat i did nolaxit the Airport on a Fox Rent A OarShuttle Bus. other Airport Transportation. and/or I did - I ‘ .. . ‘ not use an Airport courtesy phone to arrange the car rental within twenty-four (24) hours of arrival at the airport. $191.4 aESTIMATEDCI'WGES: $410.14 ouunnunuuuuooouuuuauuummmu DUUDDEEJDUDDDDED $560.14 nonaumnunnuntmnounonmmuooooonmmmnnlnunmmunnmanououunumnmoooucuumnnnmnnnnu DDDUDDUDUUEDDUUOD $-1 60.00 :lnonnmuncmclunnlmcluuunnol:ll:mumnounnunullBumuumnonfififigfigfiuflflgggfillfutétfilgggggw[mu NEl' DUE FROM.CO:L $0.09 1min EDDUDUDDDDDUDDECIUDIDEIUEIJ . -‘ ' .2 . ' 333gg€333Egggggguuungggguuuuuuouununoun Min mum 4- Days‘% mill! Not To ExmdM m reopen: mall . Worn, and euthorln PM A car, inc. total _ :3; mm mmmfizm m%w mafia-treating m mmfixmly. mm 1?: Ea’fly fiemm'fflm Not To BtceedM mm M parking Wilmer mmmnfimewmm to “eardrum, "- I 3mmmulblriamgmmmmImmzmewmmmmmarginlllyzwwmm Late lithium .$ 49'02’251Afler 05/21/2917 12:18 PM mmmmmmwmmmmmm.uc.mwmp)mmsraq~umnc~wmmmrm NmmeflwmaHouseman.nwam1.mmmmmmmwteemmummmmmwhitetail Acknowledges X: Row-a.w“minimmmmdmmmwmmmmmmmwflmhmwmm mnrewmnmmyuqmmmummmmmzeummmmumummummmmmmm mmnimuammmwww.mnummmmymhmmmmmmmmmmmun W“ ~ thdrPlemdiom ermllprevbiedmrentttdemelel wtat mlmmumwmm . mfimfimgdflzfiagflmmhwmflwwmw “wean“ XE- mmnmfiwefilmiflmomnmbwmmdMmw Awoamam. Adoltlonaificnar‘astgneture X: ER 8 ~ Fox Rent A Car Pmcesslnu Schemes ~ ~ wwwroxrousmnnusssou m“°""‘°“"°""" 1150 N. Alma School ma x~s Exhibit "1" NW“ Number: 7031"“43015 Mesa. AZ 85201 Due Date: 112m)” Refs-ratios In 14583309 Toll Amaunt: $7.26 lllflfiflllflflflfllfllllflfllfllflllll . .“mmm Fm 53”” Ma: $3725 USD c I e {gr Rang Cg; Toll ghamg @ 02917 1 MB 0.420 T 14 oaAmacm-z 0101.041 MICHAEL TSIVYAN 1095 BUCKNAM AVE Efi CAMPBELL CA 950086909 0716464 llllll'll ll'llllll'lll'l'll'l'|lllI"llllll“Illllllll'l'h'l'll' YuuraumflyrsntadavdfldalrunFOXRENTACAR,INC.mmmemnmwenflAwmmmmmmflflmmmwmlmmgmm rentalcarmymn-pmamatmm-ma.mmwwm}wepauonyowhemflwwmhxflsmAwmmmmaIntakes mamas and manual which seizure. Specific mfmmaflon about the M) me) Is provided below and am he vlswsd a! WEWEN§°91~______~W--..._._~-___-___-__.W _ ...y. [- Remlcarmwy: FaxRemAcaI » . Tonnumber. DamilsonFoagf’abEfs)~ " _“ mwmwwoms 50mm»: Tun I I pmmmmr 8A7UUD175 humanism: DetailsonFalbwlng Paga(a) ' wamm omnzmvumem [ l Rammmnm os/zuzmnnaem J AxprovldedmyemMAwesmmuimFomfiAfi-mywmmsflflefweflmes.Wmfeesrelaledhhnme(s)mamedduflng ywrrmtal mmnazmummasmmwmreewmmwmw mawmmmmwmunmymmamm Slxad‘mmatrflflvsfaea FoxRemACa‘Prooeaslngswiveskeraquesmmtyoummmhrflwmflamuntmpddmymbehalf,mdalsvpaymemdnbkaflvefee Wmmmwtflyonoak.mmmmmwumbmmmmLa-mmmeanwiubemmeummetw mm and mum fee on 71212017. The drama on your credit card adamant wRi appear as FaxToflaArniFlneé-ATS or American Trams: Bolufimmwmmmmflommn‘wmhmmmamdmbypm, orhymauwnbelotmberow. - = WIiyoumvaalmadymmpaymmmfiuemnlawer,plewepmvldeuswmpmufofpaymemw \vamaychar‘hlfimflflrwlthlhamfllssum‘ Pmqpammbefnxwmm$3271051 WWWMMn m,mcmwmmummmmmm 3a,] «mmmvmmmmmmwmwmw. ’ Wmanflmm "m wwwyox-rouammuae.m V VISA NAME: MICHAEL TSIVYAN nus: W20" v’ If m mak um I: r mama ' ' ' . “$553 w’ a n O “my Manes NUMBER: 70312104430. 10 Nance DATE: 6112/2017 F“ W A cm ‘W‘9 “mm RENTAL Aakssmm uuuamsmvsw ~ ~ v’ DONOTMNLOASH Wmemo noflcenmnberonmmofyowmmk « Insenwsmwmmmww WWW FOXRENT ACAR PROCESSING SERVICES mummmumsmmmw “WW P. 0 BOX 956649 ~ I Rmnbndaclfyoummaalmmcrsdnwdvfil ST LOUIS, MO 63195-6549 ”mmmmmmmmm ""l' III'Ill'l-IIIII'u-Ihll'lllllh‘ul'"II'I'H'III ll'dllll AMOUNT DUE: $37.25 USD 1: ?531??DHH3015 UUBUUDDDDDDD DEWESUER 9 201) Fox Rent A Car Proceaslng Services WWWFOXTOLLSANDFINES£OM 1160 N. Alma School Road Xvfi Exhibit "1" Mm AZ 85201 Reference ID: 14683309 ~~ Toll Charges Detall GOOD TO 60 PO BOX 300326 SEATTLE. WA 981% (833) 93B~324fi Ext 1, 0 www.mdotgovlgmgo Ton Nmnber Toll Dmflpflm Tull Wm 17021031599 SR 520 BRIDGE EAST 612012017 9293139911 17021093486 SR 520 amour: WW 51202017 10:83:42AM Tm! Tau Charges; T013! Adminmmfiva Fees: Tab! Amount Due: Toll Amount Admin Fee $13 $15.00 53.95 $15.00 $726 $30.00 $37.25 ER10 Telling Visitors and Infreque rivers ] WSDOT Page 1 of 2 Exhibit "2" Tolling Visitors and Infrequent Drivers Pay T0“ Bl“ Good TO GO,l Customer Service Hot Une Online Customer Sign in 1-856-936-8246 Short term 8000MB Add a visitor to an existing account Pay By Mall Out of State Drivers Rental Vehicles Tell Faculties How visitors can pay a (all set up a short Term Amount Drivers can set up a Short Term Account within 72 hours of using the SR 520 Bridge Tacoma Narrows Bridge, or 1-405 Express Toll Lanes to save 50 cents on the Pay By Mail roll rate for each tnoi Short Term Accounts don't require a pass or prepaid amount Just register the vehicle license plate and your tolls will be charged directly to your trail! or debit card. Use the amount for up to 14 clays and then it automatlmlly closes. open a Short Term Accrual! onllne. by calling 1-836»936-8246 or at a cummer servlee center. Add a visitor to an exlsting Good To col mun! You can temporarily acid a guest to your eXIstlng Good To Gol account They don't need a pass. Just add their license plate to your account In the account settings Vehicles without a pass will be charged the Good To Go! toll rate plus an extra 25 cents fee per toll transactlm. StepabyAstep instructions to ado a license plate to your account Pay By Mail With Pay By Mail you'll travel now and pay later, When using the SR 520 Bridge, Tacoma Narrows Bridge, or [-405 Express Toll Lanes without Good To Gal account, we’ll send a bill in the mall to the registered owner of the vehicle at a higher toll rate, To use the SR 167 HOT lanes, solo orlvers must open an account and install a Good To Sol pass in their vehicle. Pay By Plate, Short Term Account and Pay By Mail are not available. Out of state Drivers Drivers with out of state license plates can still set up a Good To Gal account or choose to pay by mail. If you don't have an account, we'll send the toll bill to the address on your vehicle registration. if you're moving to Washington. learn how to get Washington license plates. Rental cars If you’re in a rental car or using a rideshare app be sure to check your terms and conditions before using a toll road, because they each have different policies and sometimes have extra fees which we have no control over, Toll Faculties - SR 520 Bridge - Tolls collected In both directions. - SR 16 Tacoma Narrows Bridge - Tolls collected only in eastbound direction - SR 167 HOT Lanes - Only solo drivers pay a tail to use HOT lanes Carpools and motorcycles travel toll free, - I-405 Express Toll Lanes - Carpools and motorcycles must have an active Good To Gol account and the correct pass to travel toll free. During peak hours. carpoois must have 3+ passengers Other vehicles can pay a toll to use the lanes http://www.wsdot.wa.gov/GoodToGo/visitors.htm 6/23/2017 Tolling Visitors and Infreque1 Pawcrcd by Dr D: rivers ] WSDOT Exhibit "2" ~ ~ CWyrrghl wsum «. 2m 7 http://www.wsdot.wa.gov/GoodToGo/visitors.htrn Page 2 of 2 6/23/2017 12 Rental Car Policies - San Jose ’ ' port - Fox Rent A Car Page 1 of 4 ~ ~ ~ ~ Exhibit "3" _ _ Rental Policies (/en/toolbar/rentalvpolicies‘html) FAQs (/en/faqs‘html) - F O X - Login RENT A CAR English (/en/Iocations/unicedstates/ca1ifomialsan-juse-airport/rentahpolicieshtml) (/en.html) | Espanol (/es/locations/united-states/california/san-jose-airporflrentaI-policieshtml) 1 Fox LIVE CHAT 7/?! Dim Car Rental WM] 13 https://www.foxrentacar.com/en/locations/united-states/california/san-jose-airporflrental-p... 6/22/2017 Rental Car Policies - San Jose ' port - Fox Rent A Car Page 2 of4 Exhibit "3“ ~ ~ HOME (lenmml) » LOCATIONS (len/locationsJitml) » United States (len/locauons/united-states.html) » California (len/locations/unitedAstates/califomia.html) I» San Jose (len/locationslunited-states/califomia/san-joseairporthtml) » Rental Policies at San Jose (SJC) Airport ADDITIONAL DRIVERS AFTERHoDRS H AGE eANCELLATION ‘ CURRENCY DEmTCARDs DmEcn0Ns EMERGENCYINFO EowPMENT ‘ GAS I GEOGRAPHm HHONORRESERvAfiONS ilNSURANCE "ENEMY V voTHER PAYMENT PREPAID RESERVATIONS RULES ‘ SHUTTLE ‘ TOLL ROADS AND FEES Parking and Moving Citations. You are responsible for the payment of all vehicle parking and moving citations assessed against you or the vehicle during the rental period, including all such citations https ://www.foxrentacar.com/en/locations/united-states/cal ifomia/san-jose-airport/rental-p... 6/22/2017 Rental Car Policies ~ San Jose ‘ ' port - F x Rent A Car Page 3 of 4 Exhibit "3" ~~ captured by camera and any related fines. fees. or penalties. If a citation Issuing authority notifies us that we will be liable for any such citation and any related fines. fees, or penalties you will be charged USU/40 administrative fee for each such notification in addition to the fine, fee, or penalty. Tolls and the optional PlatePass All-Inclusive Service. You are responsible for the payment of all tolls incurred during the rental period However. for your convenience we offer PlatePass All-Inclusive, an optional electronic toll payment service whereby all toll charges and any related fees you Incur during the rental period for the PIatePass Toll Roads set forth below are covered by a daily PlatePass All- Inclusive rate set forth in your rental agreement. PLATEPASS TOLL ROADS: The toll roads and bridges on which PiatePass may be used are as follows: (a) throughout the states of FL. CO, and TX: (b) on the SF Bay Area Bridges in CA; and (c) on the Tacoma Narrows Bridge and the SR 520 Bridge in Seattle. WA Please copy the link below into your browser and visit the site for more information on all PlatePass Toll Roads: https://platepass.com/fox/ NON-PLATEPASS TOLL ROADS: Other than the above-listed toll roads and brldges, all toll roads and bridges are Non-PlatePass Toll Roads. The current rates applicable to the PlatePass All-Inclusive service are as follows: Rentals originating In Florida, USD/6.99 to USU/8.99 per rental day depending on location. Rentals originating In CA WA. CO. or TX USD/11.49 per rental day. Maximum charge of 15 rental days. NOTICE: If you choose not to purchase the optional PlatePass All-Inclusive service at the commencement of your rental, and you utilize a PlatePass Toll Road. then you will be charged a USD/15 admin fee per toll (USU/90 maximum per rental agreement) plus the price of the toil and fees from the tolling authority Non-Plate Pass Toll Road Tolls: You are responsible for paying all of your tolls If a Non-PlatePass Toll Road tolling authority notifies us that we will be liable for any toll, or related fines, fees. or penalties Incurred during your rental period, you will be charged a USO/‘15 administrative fee per toll (USU/90 maximum per rental agreement), in addition to any toll, fine, fee. or penalty. You can avoid this USU/15 administradve fee by paying your tolls yourselfi Authorization: You authorize Fox Rent A Car, Inc. to release your rental and payment card information to ATS Processing Services, LLC. PlatePass, LLC. and their affiliates (collectively. aATSa) for processing and billing purposes. If Fox Rent A Car, inc. or ATS pays a toll or a citation incurred on your vehicle during your rental period, you authorize Fox Rent A Car, Inc. or ATS to charge all such payments and related administrative fees, as described above, to the credit card. other payment card. and/or billing account you used for your rental. Additionally, in connection with any tolls or citations you incur, you authorize ATS to (1) contact you; and (2) contact any toll or citation issuing authorities; (3) share your information with any toll or citation issuing authorities; and (4) transfer liability for any toll or violation to you. In somejurisdictions, liability for tolls or violations may not be transferred to you. and you may not be able contest such tolls or violations. TRAVELING T0 MEXICO FOLLOW US https://www.foxrentacar.com/cn/locations/united-states/califomia/san-jose-airport/rental-p... 6/22/20] 7 Rental Car Policies - San Jose ~ ' ‘ port < Fox Rent A Car ~ ~~ Exhibit "3"~ ~ Page 4 of 4 (http://twiner.com/#llFoxRéhmflwww.facebookcommqfiehlpmmgoogIe.com/+filnttent£nmwm)esticornlfoxrentacar ~ ~~ Em: [http://instagram.com/Foxr€m;nflwww.linkedin.com/c(1mpafiylmgomube.coml You I Join Fox Hot Deals Email and Save! ) l l ~ FOX CORPORATE About Fox (/en/about-fox.html) Careers (/en/careers.html) Press Room [len/press-room.html) Business Opportunlties (/en/businesswopportunitieshtmll Terms of Use (/en/terms-of. use.html) Privacy Policy (Ian/privacy- policyhtml) Site Map (/en/sitemapmml) FOX PROGRAMS Fox Choice Program (Ion/fox- choice-programhtml) Fox Car Sales (http://www.foxcarsales.com/) Tour Operators (Ian/tour- operatorsmml) LAX Alrpon: Parking (http://wwwfoxautoparks‘com) Fox Contests (/en/contesthtml) FOX Text/5M8 Deals (/en/deals/sms-promo- programhtml) Thumb~it Mobile App (/en/thumbit/speclal-offer.html) FOXpress Program (/en/foxpress/special-ofl‘er.hnnl) ©1997-2015 Fox Rem A Car All Rights Reserved https://www.foxrentacar.com/en/Iocations/united-states/california/san-jose-airpor’t/rental-p... ~~ "Q” N mcom) CUSTOMER SERVICE Contact Us (/en/contactvushtml) Rental Policies (/en/rental- policieshtml) Accident/Claims Report (/en/accident-report.html) Locations (Ian/locationsrhtml) Extend Your Rental (/en/my- fox/extend‘html) Fox Travel Tips (/en/fox-travel- tipammll FAQs (/en/faqs.html) 6/22/2017 16 Gmail - Renml Agreement 810407599 - Case N er 298999 https‘J/maiLgooglem 1ail/u/0/?ui=2&ik=3216947da4&jsver=HFKf... Exhibit "4" M G ma i] Michael 1‘ ~ ~ Rental Agreement SJC-407599 - Case Number 298999 FoxRenmCar Fri. Jun 23. 2017 at 1:21 PM To: ”MTSNYAN@GMAIL.COM' Dear Michel Taiwan. Thank you for contacting the Fox Tolls and Fine: Service center regarding notice number 7831770443015. As we value you as a renter, we have mduead the administrative feats) as a mums courtesy in the amount at $15.:IO. Allow 5 business days for this adjustment to process Please be advised that there will be an administrative fee on any future toils orflnee that oomr in rental vehicles. and we would not be able to waive as a courtesy. We hope that this information Is helpfuL We are mmmmed in providing the highest level of customer samba. For additinnai information, you may ooniaa us by email, phone. ar visit our website. wwi'oxiollsendflnasmm. Yuu will need your Rental Agreement number and last name to access the Worn-radon unlinel Thank you for choosing Fox. Kathy S [ Tbiis & Fines Support Specialist Fox Tolls and Fines Service Center Phone: (855) 571-5137 I Fax: (502) 532-7051 FoxRenIACar@Imol mm ] mxoxinlisandfines com ER17 1 of] 7/28/2017 4:45 PM Exhibit "5" ~ ~ June 22, 2017 Michael Tsivyan 1095 Bucknam Ave. Campbell, CA 95008 Tel.: (408)887-6739 Email: mtsivyan@gmail.com TO: Fox Rent A Car, Inc. 5500 West Century Blvd Los Angeles, CA 90045 RE: Rental Agreement SJ 0407599, Confirmation # FFXOOQCD8D Dear Madam! Sir, On May 17, 2017 I signed a contractual agreement referenced above with Fox Rent A Car, Inc. ("Fox") at San Jose airport to rent a car for a one-way trip to Seattle, WA. Five days later, on May 21, 2017, I returned the car at Seattle airport. On June 20, 2017, I received a letter fiom Fox demanding $7.25 for toll charges incurred on two occasions when I crossed SR 520 bridge in Seattle. In addition to these toll charges, Fox added $15 administrative fee for each event, Le. $30. On June 21, I spoke with Fox’s representative who agreed to reduce the administrative fee by 50%, but refused to waive it altogether. I believe the rental agreements administrative fee provision violates California Consumer Legal Remedies Act (“CLRA”), Cal. Civ. Code § 1750 et seq. that prohibits “unfair or deceptive acts or practices." Specifically, the provision violates Cal. Civ. Code §§ 1770(a)(5) and l770(a)(19). In accordance with Cal. Civ. Code § 1782(a), this letter provides you a 30-day notice of intent to commence a legal action against Fox for compensatory and punitive damages as well as all costs incurred to litigate the case. To avoid the legal action, damages and costs, please promptly notify me within the 30-day period that (1) Fox agrees to waive all administrative fees in their entirety, and (2) refund all administrative fees that Fox has already charged. it Michael Tsivyan. Best regards, ER18 Rental Car Policies - San Jose ’ ‘ port - Fox Rent A Car Page I of 4 ~ =FOX=‘ RENT A CAR (/en.h1ml) ~ ~~ ~ ~~ ~ 7h Bdrm/It 62/ Pay/Bl Call/pan] Exhibit "6" ~ ~ Rental Policies (/en/toolbar/rental-policieshtml) FAQS (/en/faqs.html) Login English (/en/loca[ionslunited-states/califomia/san-jose-airport/rental-policies.html) I Espanol (/as/lucations/united-states/california/sanjosaairport/rental-policies.html) I FOX LIVE CHAT https://www.f0xrentacar.com/en/locations/united-states/califomia/san-jose-airport/rental-p... 6/22/2017 Rental Car Policies - San Jose ' ' port - Fox Rent A Car Exhibit "6" ~ ~ HOME (len.html) » LOCATIONS (len/locations.html] » United States (len/Iocations/united-stateshtrnl) » California (Ian/locations/united-states/califomia.html] » San Jose (len/locationslunited-5tates/califomla/san-joseaIrport.html) » Rental Policies at San Jose (SJC) Airport ADDITIONAL DRIVERS AFTER HOURS AGE CANCELLATION CURRENCY DEBIT CARDS DIRECTIONS I EMERGENCY INFO EOUIPMENT I GAS I GEOGRAPHIC HONOR RESERVATIONS INSURANCE ON E-WAY OTHER Website Vehicle Display and Availability The featured vehicles mat are displayed for each car class on the Fox website or partner booking sites are only representations of the type of vehicle that may be available or offered at the time of pick up. We cannot guarantee any specific displayed vehicle will be offered or available at the time of pick up due to fleet variances in availability. location, date or other factors impacting the actual location fleet at the time of pick up. If a third party partner site has not updated their FOX US fleet information, the displayed vehicle at booking may vary greatly from the fleet available at the FOX location. Arbitration Provision ARBITRATION PROVISION: BY RENTING A VEHICLE FROM FOX RENT A CAR, INCl, YOU AGREE TO ARBITRATION OR A SMALL CLAIMS COURT CASE ON AN INDIVIDUAL BASIS RATHER THAN JURY TRIALS 0R CLASS ACTIONS. BY ENTERING INTO A RENTAL AGREEMENT WITH FOX RENT A CAR. https://www.foxrentacar.com/en/locations/united-states/califomia/san-jose-airport/rental-p... Page 2 of 4 6/22/2017 Rental Car Policies - San Jos 'rport - Fox Rent A Car Page 3 of 4 Exhibit "6" ~~ INC.. YOU AGREE TO THIS ARBITRATION PROVISION. Except for claims for property damage, personal Injury, or death, ANY DISPUTES BETWEEN OR AMONGST YOU, FOX RENT A CAR. INC., ATS PROCESSING SERVICES LLC, PLATEPASS, LCC, AND EACH OF THEIR RESPECTIVE AFFILIATES MUST BE RESOLVED ONLY BY ARBITRATION OR IN A SMALL CLAIMS COURT ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT ALLOWED. YOU, AND FOX EACH WAIVE THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION EITHER AS A CLASS REPRESENTATIVE OR A CLASS MEMBERI You and Fox remain free to bring any Issues to the attention of government agencies. This Arbitration Provisions scope is broad and includes without limitation. any claims relating to any aspect of the relationship or communications between you and Fox, whether based in contract tort. statute, fraud, misrepresentatlon, or any other legal theory. It is govemed by the Federal Arbin'ation Am. 9 USC1 et seq. In any arbitration under this Arbitration Provision, all issues are for the arbitrator to decide, including his or her ownjurisdiction. and any objections with respect to the existence. scope. or validity of this Arbitration Provision. The arbitration will take place in the county of your billing address unless otherwise agreed. The American Arbitration Association will administer any arbitration pursuant to its Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer- Related Disputes. Please see www.adrlorg for more details. You or Fox may commence an arbitration by providing a written demand for arbitration to the other (to Fox Rent A Car, Inc” 5500 W Century Blvd. Los Angeles. CA 90045 Attn: Arbitration / Legal Dept.) and two copies of the demand to the AAA. The arbitrator may award injunctive relief as well as money, but only in favor of and warranted by the claim of the individual party seeking reliefs Judgment on the arbitration award may be entered In any court having jurisdiction. An arbitration award and anyjudgment confirming it apply only to the specific parties in that case and cannot be used in any other case except to enforce the award itself. The arbitrator may not consolidate more than one persons claim, and may not otherwise preside over any form of representative or class action, IF YOU DO NOT WISH TO AGREE TO THIS ARBITRATION PROVISION, YOU MUST NOTIFY FOX IN WRITING WITHIN 30 DAYS OF YOUR RENTAL AGREEMENT BV EMAILING arbitration@foxrentacar.com OR BY MAIL TO Fox Rent A Car, Inc., 5500 w Century Blvd, Los Angeles. CA 90045 Attn: Arbitration / Legal Dept. Include your name address, the number at the top of your Rental Agreement and a clear statement that you do not agree to this Arbitration Provision. If you have previously notified Fox of your decision to opt out of arbitration you need not do so again. PAYMENT 4 PREPAID RESERVATIONS RULES H ’ ‘ V SHUTTLE "TOLL ROADS AND FEES TRAVELING T0 MEXICO ~ https://www.foxrentacar.com/en/Iocations/united-states/califomia/san-jose-airport/rentaI-p... 6/22/20] 7 Rental Car Policies - San Jose FOLLOW US~ ‘ port - Fox Rent A Car Exhibit "6" ~ ~ Page 4 of 4 (http: //twitter. com/#l/FoxRWww. facebook. comWOaIgoogk-L com/+fflmemhammnimrest. com/foxrentacar 1 Join Fox Hot Deals Email and Save! FOX PROGRAMS FOX CORPORATE About Fox (/en/about-fox‘html) Careers (/en/careers.html) Press Room (/en/press-room.mml) Business Opportunities (/en/buslnessopportunities.html) Terms of Use (/en/terms-of- use.html) Privacy Policy (/en/privacy- policyhtrnl) Site Map (/en/sitemaphtml) Fox Choice Program (/en/fox- choiceprogramhtml] Fox Car Sales Gittp2/lwww.foxcarsales.com/) Tour Operators (/en/tour- operatorshtml) LAX Airport Parking (http://www.ioxautoparks.com) Fox Contests (/en/contestMmI) FOX Text/5M5 Deals (/en/deals/sms-promo- programhtml) Thumb~it Mobile App (/en/lhumbit/specialof‘ferhtml) FOXpress Program (/en/foxpress/specialoffermml) ©1997-2015 Fox Rent A Car All Rights Reserved https://www.foxrentacar.com/en/Iocations/united-states/califomia/san-jose-airport/rental-p... CUSTOMER SERVICE Contact Us (/en/contact-us.html) Rental Policies (Ian/rental- policieshtml) Accldent/Clalms Report (/en/accidem-report.html) Locations (len/locations.html) Extend Your Rental (/en/my- fox/extend.html) Fox Travel Tips (/en/fox-travel. tipshtmI) FAQs (/en/faqsrhtml) 6/22/20] 7 Exhibit 7 ~~ SOURCE: https://www.washingtonpost.com/lifestyle/travel/how-to-avoid-gotcha-toIl-feos- from~your-reutal-car-company/ZO17/01/26/54ee98d8-d36c-11e6-9cb0- 54ab63085le8_story.html?utm_term=.7fal3a042581 How to avoid ‘gotcha’ toll fees from your rental-car company By Christopher Elliott, a consumer advocate, journalist and co-founder of the advocacy group Travelers United. Email him at chris@elliott.org. January 26, 2017 Whether you’re heading down to Florida for spring break or out to Denver to go skiing, you need to know about one of the worst kinds of tourist traps you could fall into. In Orlando, it’s called State Road 528, also known as the Martin Andersen Beachline Expressway. In Miami, it’s Florida State Road 112, also called the Airport Expressway. In Denver, it’s E---470, which connects the city with its international airport. Not only are these toll roads opportunistically built next to airports, they’re almost entirely cashless, meaning there’s no booth where you can pay your toll. If you don’t pay, the systems generally take a photo of your plates and send you a bill. Too often, out-of-town visitors find themselves driving rental cars on these roads - and accruing surprise charges in the process. The surprise is not the cost of the tolls themselves, but the ofien exorbitant rental-car surcharges for incurring them. “The whole system is rigged in favor of the rental car companies,” says Cynthia Rigatti, a consultant from Mill Valley, Calif., who inadvertently used a cashless toll booth on a recent visit to New York and incurred a $4.95 per day transponder charge from Hertz, even though she never used another toll road or bridge on her trip. There are ways to avoid these charges, and no better time to know about them than now, when they are generating more profits for rental car companies than ever before. Knowing that boothless toll roads exist and planning ahead is perhaps the most effective way to steer clear of them. You can also bring your own toll transponder and have a plan for handling any dispute that may arise if you receive a bill from your car rental agency or tolling authority. Or you can do both. Phillip Singleton, a political consultant who is used to navigating Florida’s toll roads, favors the plan-ahead approach. l-Iis preferred app is Waze, which offers crowdsourced driving directions that show you how insiders get from point “A” to point “B.” ER 23 Exhibit 7 ~~ “Not only do they have faster routes,” he says, “But in your map setting you can choose to avoid tolls.” Zaida Khaze, a small-business owner from Fort Lee, N.J., frequently rents cars in the New York area, and has learned to never trust the GPS systems in the cars. Why? “They always chose routes with tolls,” she says. Instead, she turns to her smartphone. Google Maps allows her to plot a course with no toll roads. “That saves me,” she says. Robert Herbst, an attorney in Larchmont, N.Y., brings his own transponder - E-ZPass -- when he rents a car. E~ZPass, which works in 15 states, allows you to transfer a transponder between vehicles as long as they are of the same vehicle class. He registers his rental car with a quick call. That doesn’t guarantee the car rental company’s transponder or plate registration system won’t also kick in, double billing you. To avoid that, Herbst always tells rental company employees in advance that he plans to use his own transponder. “I have found that most car rental companies back down on issues if you act like you know what you are doing and don’t take no for an answer, in a firm but polite way,” he says. And when they don’t? Herbst has received a bill or two from rental companies when he used his own transponder, and has successfully disputed the fees. Of course, it helps that he’s both a lawyer and a world champion powerlifter, each of which can be quite compelling in their own way. If you don’t have a transponder, or yours doesn’t work at your destination, you can always buy one. In Florida, for example, a SunPass Portable transponder costs $19.99, or you can get by with a SunPass Mini Sticker transponder for $4.99. You can buy them at Publix, CVS and Walgreens. Both units allow motorists to have tolls electronically deducted from prepaid accounts. SunPass also has a helpful page for car-rental customers. Even when you’re stuck using your car rental company’s transponder, there’s still hope, says Mark Mannell, chief executive of CarRentalSavers.com, an auto-rental site. All-electronic tollways in Texas and Maryland allow drivers to pay online quickly, he points out: “This allows you to avoid any administrative fges that the rental agency charges.” (Tolling authorities recommend that you contact your rental company before doing so.) Perhaps the most important thing to remember is that you’re responsible to the tolling authority, not the car-rental company, for settling your debt. If you can demonstrate that you have paid your toll but a charge appears on your bill, you can dispute it via your credit-card company. The industry probably will roll over long before it gets to that point. The reason? Companies don’t want a credit-card dispute, and they definitely don’t want the dispute litigated. Should that happen, it could eventually set a precedent that the industry doesn’t want -- but which consumers urgently need. ER 24 Exhibit 7 ~ ~ SOURCE: http://www.miamiherald.com/news/business/tourism- cruises/anicle4183562l.html Rental car toll fees stir backlash that threatens Florida’s image By Steve Bausquet, Heraldfl‘imes Tallahassee Bureau bousquet@tampabay.com or (850) 224-7263. October 29, 2015 4:00 PM TALLAHASSEE Visitors to Florida who rent cars are being shocked by toll charges long afier they get home, and enough are complaining that legislators say it could damage the state’s tourist-friendly image. In Florida, a tourist climbs behind the wheel of a rental car and enters a world of 600 miles of toll roads, more than any other state. As cash toll booths are steadily giving way to cashless, all- electronic tolling, car renters are being hit with service fees of $4 to $15 a day on top of unpaid toll charges. The rental car industry calls it a convenience as Florida moves to all-electronic tolling. Others call it a ripoff. “Highway robbery,” shouted a major newspaper in Canada, a key Florida tourist market. In Tallahassee, Attorney General Pam Bondi has had an open investigation for years with hundreds of written complaints, but no resolution. “1’11 sure think twice about coming to Florida again!” wrote Bruce Miller of Michigan, who found a $15 administrative fee on his credit card after he drove on the Lee Roy Selmon Expressway in Tampa in March. In Miami, a federal judge will decide whether to approve a class-action lawsuit against Dollar Thrifiy’s $15 fee for every skipped toll, by far the highest in the industry. Dollar Thrifty says the lawsuit is baseless, and other rental car companies say they disclose all fees charged to their customers. But the uproar has caught the Legislature’s attention. “We don’t want people coming here and renting cars and then getting a feeling like they're getting ripped off or getting gouged,” Republican Rep. Patrick Rooney of West Palm Beach said at a recent hearing. ER 25 Exhibit 7 ~~ Rooney chairs a House transportation panel that invited testimony from rental car company lobbyists after Rep. Ed Narain. D-Tampa, said the “backlash” from touristsjustifies a closer look. Narain cited an article in The Globe and Mail in Toronto in July under the headline “Highway Robbery” in which columnist Rosie Schwartz described being charged $91.45 for three trips to Miami. “Beware that you don’t become a victim,” Schwartz wrote. Similar fees are charged across the country, but the Sunshine State stands out for its abundance of both tourists and toll roads. Adam Cohen of Connecticut came to Florida and was charged $24.75 by Hertz, the company’s maximum fee for a rental. He told the Hartford Courant that after he complained, the company gave him a credit of $19.80. Hertz, a crownjewel of Gov. Rick Scott’sjob recruiting efforts, relocated its corporate headquarters to Florida two years ago. The company agreed in 201 1 to refund $11 million in charges to settle a nationwide class action lawsuit over its toll fees. At a legislative hearing in Tallahassee, lamnakers questioned why toll fees have showed up on a customer’s credit card bill as much as two months after the rental ends. Industry lobbyists said the delay is due to third-party toll collection companies having to wait for data from state and local toll authorities and then forwarding it to rental car companies, which then charge their customers. Rep. David Santiago, R-Deltona, was dismayed that Avis and Budget charge a $3.95 daily service fee even on days when the driver doesn’t use a toll road. “Why?” Santiago asked. “I hate to take advantage of our tourists.” Doug Bell, a Florida lobbyist for Avis Budget Group, noted that the maximum toll fee imposed by the two companies is the industry’s lowest, at $16.95. “There is a large infrastructure to create the system and then there is a great deal of effort and time to manage the system on a daily basis,” Bell testified. “It is an expensive proposition to build and run the program.” Bell told lawmakers that most Avis and Budget reservations are made online and that contracts clearly note additional charges for tolls. He said quality service is important to rental car companies, which rely on repeat business. Another industry giant, Enterprise Holdings, which includes Enterprise, Alamo and National, charges $3.95 a day, but only on the days when atoll is unpaid. ER 26 Exhibit 7 ~ ~ The industry’s toll collection practices have spilled into the courts in South Florida. Marshall Maor, a New York resident, rented a car in Florida last year and was charged $15 for each missed toll by Dollar Thrifty, plus the cost of the tolls. He filed suit in US. District Court in Miami, claiming breach of contract and unfair and deceptive trade practices and accusing Dollar Thrifty of charging much more than the actual cost of the service. “We’ve heard from people all over the country,” said Maor’s attorney, Bruce Greenberg of Newark, NJ. “It’s certainly a major problem in Florida.” Dollar Thrifiy wants US. District Judge Jose Martinez to dismiss the suit. The company says the fee was disclosed in the rental contract and that Maor voluntarily paid it. In court filings, Dollar Thrifty says no breach of contract occurred and that Maor could have avoided driving on toll roads, paid cash to Florida toll agencies or bought the company’s toll service for $10.49 a day, which includes all toll charges. “Rather than take any of these three options, [Maor] chose to drive through an electronic toll lane without making any arrangement to pay for the toll he incurred,” the company argues. Dollar Thrifiy also told the court that no law requires that fees charged to customers must “exactly match” the underlying cost of the service. Greenberg’s law firm previously sued Dollar Thrifty in Oklahoma, but ajudge dismissed that lawsuit. Narain, who raised the issue in the Legislature, said rental car firms should improve disclosure of all fees. “If we’re not very careful about improving the disclosure process about these administrative fees, we’re going to see a continued backlash,” Narain said. “We’re going to see more lawsuits. But in Florida’s pro-business Capitol, there is no support among legislators to impose stricter consumer safeguards but rather to let the companies police themselves. “It could be a slippery slope when you start telling companies what they have to do,” said a Pinellas County lawmaker, Rep. Kathleen Peters, R-South Pasadena. “With the free market, each company is going to monitor this.” ER 27 Exhibit 7 ~ ~ SOURCE: https://thepointsguy.com/guide/avoid-reutal-car-tolI-charges/ How to Avoid Excess Toll Road Charges for Rental Cars By Jason Steele June 19th, 2017 Toll roads are becoming increasingly common in many major cities. Sometimes these tolls are imposed to fund new construction, while other times drivers are offered the choice of using “express” toll lanes that may have less traffic. When this trend was combined with the move toward cashless tolling systems, rental car companies smelled a new profit stream that reeked of a scam to their customers. In this post, I’ll explain how certain rental agencies handle these charges, and what you can do to avoid paying more than your share. How This Scam Works To visit my grandmother in Coral Springs, Florida (about a half hour north of Fort Lauderdale), I have always taken the Sawgrass Expressway and forked over two quarters each way for the privilege. But a couple years ago I was forced to drive my rental car through the automated toll plaza, as the cash toll booth was being demolished before my eyes. As a result, I was stuck paying both the toll itself and Alamo’s “convenience charge” of $3.95 per day, which is quadruple what my round-trip cost would have been if I had been able to pay cash. Adding insult to injury, my account was charged for the full toll price rather than the discounted price paid by all other vehicles with transponders. Furthermore, from the moment I triggered the first toll, I would be charged the $3.95 daily fee per day (or fraction of a day, with a maximum of $19.75) regardless of whether I passed through another toll during my rental. You can rest assured that the $3.95 fee does not go to an army of skilled bureaucrats sifiing through a mountain of toll invoices that arrive in the mail - it’s all handled electronically, and nearly all of these charges are retained as profit. That’s not even the worst of it. In Florida, Dollar and Thrifiy charge a $15 administrative fee per toll unless customers opt in to the $8.99 per day “all inclusive” plan (so I can come out ahead if I visit grandma 10 times each day!). Other Aspects of the Scam The key elements of any scam include making it as hard as possible for customers to be aware of any potential charges. Here, the rental car companies employ a well-wom playbook that looks like this: ER 28 Exhibit 7 ~ ~ First, they provide little (if any) information on the company website, so customers are blindsided once they arrive at their destination. For example, consider Fox Rent A Car. If this company is trying to be more transparent about its tolling practices in light of its class action lawsuit for undisclosed fees, I can’t find any evidence of it online. The only reference to tolls on the Fox website is in the FAQ under What if I receive a Parking Ticket or use a Toll Road? (as if they’re the same thing). The answer warns of an unspecified “service charge,” and cautions driver to “only access Toll Roads that allow for payment when entering.” To top that off, Advantage Rent A Car’s website makes no reference whatsoever to tolling charges. Next, companies make sure that any required disclosures at the rental counter are as vague as possible. If you’re lucky, you’ll see a small placard pointing out that some roads may have atoll that cannot be paid with cash, and that customers will be automatically billed for the toll, along with any “applicable service fees,” or some such understatement. Finally, companies pull an old classic by burying any legally required disclosures deep, deep within the fine print of a contract that no one ever reads. How Different Rental Car Companies Handle Tolls Advantage and Hertz use the PlatePass company, which charges a $4.95 daily fee plus tolls at the higher cash or toll-by-plate rate, with a $24.75 maximum fee per rental. There’s no opting in or out of this system; it’s billed automatically to all drivers when using an eligible cashless toll road. Avis/Budget automatically charge a $3.95 daily fee, ($19.75 maximum per month) plus tolls at the cash rate. Dollar/Thrifty are supposed to give customers the option of an all-inclusive toll package or a per-toll charge of $15 (both of which seem to vary based on rental location). Yet on my most recent visit to Florida, no one volunteered this information or offered me any choice. Thankfully, I made sure to opt in to the daily flat rate, which still billed me several multiples of the actual toll charges, but far less than if I had to pay an additional $15 per toll. Fox seems to be inviting future lawsuits by not disclosing anything about tolls (at least on its website). As best I can tell, Fox considers driving on a toll road some sort of violation, and hands things over to a company called Violation Management Services (VMS). If you have any doubt about what’s going on on here, consider that VMS advertises to potential new clients that receive toll charges (the rental car companies, not you) that they can turn the “cost center into a self- sustaining component” of the business. National, Alamo and Enterprise automatically charge a $3.95 fee per day ($19.75 maximum per rental period) plus tolls. Silvercar is once again the exception to the rule. It is the only rental car company that I’m aware of that simply passes along the toll costs with no markups! (Check out this review of Silvercar for more info.) ER 29 Exhibit 7 ~ ~ Tips for Avoiding This Scam 1. Education. You may want to spend a few minutes learning about toll roads at your destination as part of your travel planning. Before leaving home, sit down with Google Maps or your favorite mapping site, plot your course, and see whether it necessarily involves cashless toll roads. 2. Avoid toll roads. Google Maps (and presumably other mapping sites) allow you the option to avoid toll roads. You might find a free option that’sjust a few minutes longer than a tolled option. For example, I live in Denver, where we have an outer beltway that charges atoll by scanning your license plate and mailing you a bill. Nevertheless, I often drive for years without using it, as it rarely saves me much time. 3. Choose the right rental car company. At the top of the list is Silvcrcar, which imposes no “convenience charges” on its customers. Next, I find Avis and Budget to be the least obnoxious about extra charges, as they add $3.95 per day with a maximum of $19.75 a month. All else being equal, this is substantially less than the competition. At the bottom of the list are companies like Fox that don’t even disclose policies, and treat toll charges like some sort of a legal violation with stiff penalties. 4. Check out the toll road’s website. A great resource for finding out what fees to expect with various rental car companies is the toll road’s website. To the credit of the agencies that operate these toll roads, many are at least trying to be more transparent, presumably after having to deflect intense criticism from travelers who were taken by rental car agencies. For example, Florida’s SunPass program clearly discloses far more in one simple web page than all of the major rental car company websites combined. 5. Pay for it yourself. Before cashless tolls took over, smart travelers would simply bring change and avoid rental car charges the way hotel guests use their mobile phones to avoid inflated telephone bills. But it may surprise you to learn that you can pay for atoll directly, if you take a few steps in advance. For example, in Florida, you can buy your own SunPass portable transponders at supermarkets and drugstores for about $20, plus a minimum cash load of $10. At that price, most travelers (except those renting from Silvercar), will come out ahead afterjust a few days! New York and other states that are part of the EZ Pass network also sell transponders at retail locations. This solution makes great sense when you plan on visiting the same location more than once. In other states, you can simply register your rental car with the local tolling authority. For instance, in the Denver metro area, the ExpressToll system (which operates the E-470 beltway and other express lanes) allows you to register your plate and set up direct billing before going through the tolls. The easiest way to do this is to create an account ahead of time, and then simply add the rental car to the account at the time of rental. Conclusions ER 30 Exhibit 7 ~~ While I love the concept of cashless tolls, I hate companies that seek to underhandedly extract profit at the expense of travelers even more than I hate toll booths. From now on, I’ll just have to plan ahead to either avoid toll roads or choose the least expensive rental car option. On my last trip to Florida, I ended up paying an extra $20 in fees to use toll roads; next time I plan to pick up my own SunPass transponder and opt out of the inflated charges. What are your strategies for dealing with excessive rental car charges, tolls or otherwise? ER 31 Exhibit 8 ~ ~ SOURCE: https://topclassactions.com/lawsuit-settlements/lawsuit-news/l lSl-fox-rent-a- car-highway-toll-class-action-lawsuit/ Fox Rent a Car Highway Toll Class Action Lawsuit By Sarah Miranda May 25, 2011 A class action lawsuit filed in Seattle, Washington claims Fox Rent a Car and Violation Management Services illegally scammed rental car customers by charging them as much as 16 times the amount of automatically collected highway tolls incurred during the course of their car rental. Fox Rent a Car vehicles are equipped with automated equipment that records the vehicle’s passage through a highway toll so that drivers can proceed non~stop without having to pay the toll at the time of use. Fox is later billed for the toll by highway authorities. According to the Fox Rent a Car class action lawsuit, Fox and other rental car companies have several options available to ensure they do not incur toll charges in the first place and/or that they are able to recoup the actual cost of toll charges incurred by customers during the course of the rental. This includes registering their fleets” plates with “EXpress Toll” so that their renters’ tolls will be automatically applied to the rental agreement, paying the toll and then collecting the actual cost of the toll from the customer, or responding to toll bills by providing the issuing authority information regarding the rental so that the toll can be collected by the issuing authority directly from the customer. Fox does not use any of these options, however, and has chosen instead to conspire with Violation Management Services “to turn Fox customers’ tolls into an illegal profit center for themselves,” the class action lawsuit says. Rather than taking advantage of any of these collection options, “Fox has retained Violation Management Services to act as its alleged ‘administrator and processor’ of such tolls. Pursuant to this arrangement, VMS unilaterally charges customers’ credit cards for the amount of the tolls, plus an exorbitant ‘service fec’ - possibly varying in amount but sometimes exceeding 1600% of the actual toll. This ‘service fee’ is not authorized by customers, is not properly disclosed to customers, far exceeds any actual cost to Fox and/or VMS for the collection of the toll, is arbitrary and unreasonable, and is accompanied by numerous false and deceptive statements about the alleged right to collect the “service fee.’ ER 32 Exhibit 8 ~ ~ “The ‘service fee’ is nothing other than an illegal scam to collect from customers amounts that they do not owe. Indeed, VMS makes no bones about its practices, having indicated on its website that its business is to turn the collection of such tolls ‘into a profitable customer service solution.’ VMS further shares the spoils of its illegally-collected ‘service fees’ with the rental car companies with whom it contracts, offering to pay them a kickback in the form of a ‘summons incentive . . . for each service fee collected’ from customers,” states the class action lawsuit. The class action lawsuit is brought on behalf of all Washington residents or entities who, within the applicable limitations period, have been charged a “service fee” by VMS in connection with the incurrence or alleged incurrence of automatic highway tolls during the course of a vehicle rental from Fox. It is asking for damages to class members, including a full refund of any money they paid for “service fees” and tolls. A copy of the Fox Rent a Car and Violation Management Services Class Action Lawsuit can be read here. [http://oldarchives.courthousenews.com/2011/05/25/RentaCar.pdf]. The case is Averil Rothrock, et al. v. Violation Management Services, Inc. and Fox Rent a Car, Inc., Case No. 11-2- 18292-4 SEA, Superior Court of Washington for King County, Seattle Division. ER 33 \DmNIQUI-hbl-t NNN N N mqa8R$55o55SEGEEEZS Exhibit "9" DENNIS J. HERRERA, State Bar#139669 City Anomcy RONALD P. FLYNN, Slate Bar#184186 Chief Deputy City Attorney YVONNE R. , Sm Bar-#173594 Chief of Complex & Affirmative litigation MATTHEW D. GOLDBERG. State Bar #240776 SARA I. EISENBERG, State Bar #269303 Deputy City Attorneys Fox Plaza 1390 Market Street, 6th Floor San Francisco, California 94102-5408 Telephone: (415) 554-4285 Facsimile: (415) 437-4644 E-Mail: matthew.goldberg@sfgov.org Attorneys for Plaintiff PEOPLE OF THE STATE OF CALIFORNIA, acting by and through San Francisco City Attomoy HERRERA DENNIS J. O sfiéfiifi MAR 01 2017 CLERK OF THE COURT BY; AHLENE RAMOS DeputyOla'k SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION PEOPLE OF THE STATE OF CALIFORNIA, acting by and through San Francisco City Attorney DENNIS J. HERRERA, Plaintiff, vs. THE HERTZ CORPORATION, AMERICAN TRAFFIC SOLUTIONS. INC.. ATS PROCESSING SERVICES, L.L.C.. AMERICAN TRAFFIC SOLUTIONS CONSOLIDATED, L.L.C., PLATEPASS, L.L.C,, and DOES 1 through 20, inclusive, Defendants. 446] PEOPLE v. THE HERTZ CORPORATION. ET AL. Case No. COMPLAINT FOR INJUNCTIVE RELIEF AND CIVIL PENALTIES FOR VIOLATIONS OF BUSINESS AND PROFESSIONS CODE SECTIONS 17200 AND 17500 066-17-557336 D ANSWER REQUIRED PURSUANT TO CODE OF CIVIL PROCEDURE SECTION N:\AFFIRM\L12011\170235\01174459.docx ER 34 sonoqa‘LI-Aum». NNN N NNNt-r- )- Exhibit "9" 0 TABLE OF CONTENTS INTRODUCTION ........................................................................................................................... 3 PARTIES ......................................................................................................................................... 5 JURISDICTION AND VENUE ...................................................................................................... 7 BACKGROUND FACTUAL ALLEGATIONS ............................................................................. 8 I. California‘s Toll Bridges And FasTrak. .................................................................. 8 H. Hertz And ATS Farmer To Provide The PlatePass Toll Service ............................. 9 III. The Golden Gate Bridge Converts To All Electronic Tolling ............................... 12 IV. Hertz’s Gold Plus Rewards Membership Program ............................................... 13 DEFENDANTS’ UNLAWFUL, UNFAIR. AND/OR FRAUDULEN‘T BUSINESS PRACTICES .................................................................................................................................. 14 I. Customers Cannot Decline PlatePass When Reserving Their Rental Car. ........... 14 11. Customers Cannot Decline PlatePass When Picking Up Their Rental Car ........... 17 III. Defendants Provide Misleading Information About Avoiding PlatePass. ............ 18 IV. When Crossing The Golden Gate Bridge, Customers Cannot Decline PlatePass Nor Do They Receive Its Proffered Benefits ......................................................... 23 V. With Credit Card Information Provided by Hertz, ATS Charges Customers Without Proving Disclosures Or Receiving Consent. ........................................... 24 FIRST CAUSE OF ACTION ........................................................................................................ 26 SECOND CAUSE OF ACTION ................................................................................................... 31 PRAYER FOR RELIEF ................................................................................................................ 31 2 PEOPLE v. THE HER'I'Z CORPORATION. 1371' AL. N:\AFFRM\L12017\170235\01174459.d0cE \OWQQMhUNt-t NNNNNN NI-Ii-I ._. acumenhuggoxoeoSoazagzs Exhibit "9" 0 Plaintiff, the People of the State of California (the “People”), acting by and through San Francisco City Attorney Dennis J. Herrera, brings this action against Defendants the Hertz Corporation (“Hertz") and its partner American Traffic Solutions. Inc. (“ATS”)‘ (collectively, 'Defendants”) and alleges as follows: INTRODUCTION 1. In 1988, the California legislature enacted the Rental Passenger Vehicle Transactions law (Assembly Bill 3006) to protect consumers from unscrupulous practices by the rental car industry. The law prohibits rental car companies from requiring the purchase of optional services or inducing renters to purchase such services through unfair, deceptive, or coercive conduct. 2. Nevertheless, Hertz and its partner ATS are fraudulently and decepu'vely inducing Hertz customers who drive across San Francisco's iconic Golden Gate Bridge to purchase an “optional" toll service called PlatePass. Customers neither choose the service, nor receive sufficient notice to avoid it. They neither receive its supposed benefits, nor consent to its charges. Instead, by simply driving over the Golden Gate Bridge a single time, as millions of tourists do each year, each Hertz customer is charged not only the undiscounted toll rate, but up to $24.75 in extra fees. Worse, Hertz does not charge and disclose these fees on the receipt it provides to customers upon the close of the rental, but instead provides its customers’ confidential personal credit card information to a third party who slips in the charge at a later date. These practices are not only unfair; they are unlawful. 3. Opened in 1937, the Golden Gate Bridge is the oldest and most iconic of California’s eight toll bridges. With its 746-foot tall towers, sweeping main cables, signature International Orange color, and Art Deco styling, this 1.7-mile suspension bridge has been deemed one of the “Seven Wonders of the Modern World" and is one of the top-10 tourist destinations in the United States. It was and remains the only roadway between San Francisco and California’s northern counties. Forty million vehicles cross the bridge every year. 1 References to “ATS” include American Traffic Solutions, Inc, and its subsidiaries and operational divisions named as Defendants herein: ATS Processing Services, L.L.C,, American Traffic Solutions Consolidated, L.L.C., and PlatePass, L.L.C. PEOPLE v. THE HERTZ CORPORATION, ET AL. N :\AFPIRM\LI2017\1 70235\01 174459.d R36 \ocoqaxuz-P-mnp- N n-l ensureseeeeeaezeees Exhibit "9" C) O 4. Since 2009, Defendants have enabled every Hertz rental car in California with PlatePass. The service permits Hertz customers to bypass cash lanes and use the faster electronic (FasTrak) lanes on California's eight toll bridges (without having to establish a FasTrak account or incur toll violations). This convenience does not come cheap. PlatePass costs $4.95 per day for the duration of the rental, including days on which the renter does not use it, and is capped at $24.75. plus an inflated charge for the toll itself. 5. On March 27, 2013, the Golden Gate Bridge converted to All Electronic Telling (“AE'I‘”). It is the only AET bridge in the state. Motorists may no longer stop at the bridge’s Toll Plaza to pay their tolls in cash. Instead, they drive through the Toll Plaza and pay their tolls via FasTrak or one of several i'ree new payment methods-including the option to pay before or after crossing the bridge (in person, online, by phone, or by mail). 6. Since the conversion to AET, PlatePass on the Golden Gate Bridge is a scam Motorists no longer receive the advertised benefit of faster passage. Every lane is the same and available to everyone, with or without PlatePass and with or without FasTrak. And motorists can no longer avoid the service and its steep fees by paying their tolls via an optional cash lane-an option available to motorists on every other toll bridge. 7. Defendants compound these defects by actively misleading consumers about the optional nature of PlatePass and the ways consumers can avoid it. In stark contrast, customers are afforded a clear and direct way to affirmatively accept or decline every other optional service (e.g.. infant car seats, satellite radio. Loss Damage Waiver, etc). 8. Finally. Hertz unlawfully provides the customer’s billing information to ATS, a third- party, which-without proper disclosures or express informed consent-charges the customer's credit or debit card several weeks after the conclusion of the car rental. 9. Over the past four years, tens of thousands of Hertz customers have unwittingly paid millions of dollars in PlatePass fees for the simple act of crossing San Francisco’s iconic Golden Gate Bridge. 10. These and similar practices by other rental car companies have caused confusion and prompted complaints. For example. a recent article about the Golden Gate Bridge’s conversion to 4 PEOPLE v. THE I-lER’l'Z CORPORATION, ET AL. N:\AFFIRM\L12017\I70235\01 l74459.docx ER 37 \Omdmu-AWNr-I Nun-- v-t H 833§fi§8l3f3oww38mzufizs Exhibit "9" O O AET notes that rental car toll service fees come “as a surprise to some car renters who don’t learn about the charges until they get their credit card bills.” (Cabanatuan, Golden Gate Bridge Tolls Broadside Tourists Who Rent Cars, San Francisco Chronicle (June 3, 2015) 1:. El.)2 John Goodwin, a spokesman for the Metropolitan Transportation Commission, was quoted as saying his agency received a lot of complaints. most of which “are about the obscure or allegedly deceptive practices of rental car companies . . ." (172121.) 11. In addition to the aforementioned Rental Passenger Vehicle Transactions law, Defendants’ scheme violates several other laws, including the Unfair Competition Law (Bus. & Prof. Code, § 17200, et seq), the False Advertising Law (Bus. & Prof. Code, § 17500, et seq.), the Consumer Legal Remedies Act (Civ. Code, § 1750, at 3211.), and the federal Restore Online Shopper’s Confidence Act (15 U.S.C. §§ 8401-05). 12. As described in more detail below, this action seeks to put a stop to this illegal scheme, and force Defendants to pay back their victims. PARTIES 13. Plaintiff, the People of the State of California, by and through San Francisco City Attorney Dennis J. Herrera, prosecutes this action pursuant to California Business and Professions Code section 17200 et seq. l4. Defendant Hertz is a Delaware corporation with its principal place of business in Estero, Florida, and is registered to conduct business in California. Hertz is engaged in the business of, inter alia, renfing vehicles to consumers in California and around the world. Hertz maintains hundreds of rental offices in California, and maintains a website, www.hertz.com, available to California consumers._ 15. With annual revenues over $10 billion, Hertz is among the largest rental car companies in the world. It operates the Hertz. Dollar. Thrifty, and Firefly car rental brands in approximately 10,000 locations throughout approximately 150 countries in North America, Empe, Latin America. Asia, Australia, Africa, the Middle East, and New Zealand. Hertz is one of three companies that 2 San Francisco Chronicle webpage, [as of February 24, 2017]. 5 PEOPLE v. THE HBR'I‘Z CORPORATION, ET AL. N:\AFFIRM\L12017\170235\01 17445 1d R 38 \DwNIO‘Kll-Fr-e NNNMNNNMNHHH-Hl-HHi-r-a “\IO‘UIAUNHOWWNIO‘LIIAWNMO ‘0 Exhibit "9" comprise an oligopoly in the rental car industry; the three largest companies control 90% of the US. market and more than 98% of the airport business. 16. Defendant American Traffic Solutions, Inc. is a privately-held, Kansas corporation with its principal place of business in Mesa, Arizona, and is registered to conduct business in California. It is engaged in the business of, inter alia, developing and providing electronic toll and traffic management solutions worldwide, including California. It serves the nation’s largest rental car companies, including Hertz, and processes nearly 50 million toll transactions every year. 17. Defendant ATS Processing Services, L.L.C. is based in Scottsdale, Arizona, and is a division of American Traffic Solutions, Inc. 18. Defendant American Traffic Solutions Consolidated, L.L.C. is a Delaware limited liability company 'with its principal place of business in Scottsdale, Arizona. It is a subsidiary of American Traffic Solutions, Inc. 19. Defendant PlatePass, L.L.C. is a Delaware limited liability company with its principle place of business is in Scottsdale, Arizona. It is an operational division of American Traffic Solutions Consolidated, L.L.C. PlatePass, L.L.C. administersATS‘s PlatePass system and collects tolls and PlatePass administrative fees throughout the country, including California. 20. Notwithstanding corporate formalities. American Traffic Solutions, Inc., ATS Processing Services, L.L.C., American Traffic Solutions Consolidated, L.L.C., and PlatePass. L.L.C., (collectively, “ATS”) have combined operations, and at all times relevant to this litigation, American Traffic Solutions, Inc. has activelydirected and controlled the daily activities of its subsidiaries and their operational divisions, to the extent that the subsidiaries and operational divisions have no separate corporate interests of their own and function solely to achieve the purposes of American Traffic Solutions, Inc. 21. ATS maintains a website, www.platepass.com (“PlatePass website”). available to California consumers. 22. The true names and capacities of Defendants sued herein under the fictitious names Does 1 through 20, inclusive, are unknown to the People. The People will seek leave of court to amend this Complaint to allege such names and capacities as soon as they are ascertained 6 PEOPLE v. THE HER'IZ CORPORATION. EI‘ AL. N:\AFFIRM\L12017\170235\01 17445 9.docx 39 \DOONIO‘UI-b-U-IMr-A N N r-- QSmGAESESGmZEG-R‘SSSS Exhibit "9"O 23. The People are informed and believe that, at all relevant times, all the acts and omissions described in this Complaint by any Defendant were aided and abetted by all other Defendants. All Defendants have worked together, in cooperation and/or in concert, to carry out a common scheme for profit. All Defendants have intended to and did participate in the acts and omissions described in this Complaint. 24. The People are informed and believe that. at all relevant times, each of the Defendants acted as the principal, agent, or representative of each of the other Defendants, and in doing the acts or omissions described in this Complaint, each Defendant was acting within the course and scope of the agency relationship with each of the other Defendants, and with the permission and ratification of each of the other Defendants. 25. The People are informed and believe that, at all relevant times. each Defendant has conspired with all other Defendants in committing the acts and omissions described in this Complaint. 26. For example, the Hertz website identifies “P1atePass®“ as a “service partner."3 It further explains that ‘TlatePass®, a division of American Traffic Solutions, administers this service for Hertz“ and directs consumers to visit the PlatePass website “for more questions.“ PlatePass, in turn, maintains a dedicated “Renting with Hertz” page on its website, which describes how PlatePass is ofiered to Hertz customers.s Printed materials at Hertz locations also describe how PlatePass works and direct consumers to PlatePass’s website. JURISDICTION AND VENUE 27. The San Francisco Superior Court has jurisdiction over this action. Defendants are eondutiting unlawful and deceptive business practices in San Francisco, and the City Attorney has the right and authority to prosecute this case on behalf of the People. People in San Francisco have been victimized by Defendants' unlawful, unfair, and fraudulent business practices. 3 Hertz webpage, [as of February 24, 2017]. 4 Hertz webpage, [as of February 24, 2017]. 015 PlatePass wehpage, [as of February 24. 2017]; PlatePass webpage. [as of February 24, 2017]. 7 Hertz webpage. [as of February 24, 2017]. 10 PEOPLE v. THE l-IER’IZ CORPORATION, 1371' AL. N:\AFF[RM\L12017\170235\01174459.docx ER 43 \DmQGM-hb-IMH £3§3§BS§8$ESEGESEZS Exhibit "9" O The PlatePass® service also means that rental car customers will avoid costly toll violation fines otherwise incurred if high speed toll lanes are used without special equipment or prior enrollment.“ d. The PlatePass homepage links to a webpage entitled “How It Works," which similarly advertises the benefit of PlatePass: “PlatePass® is an automated Electronic Toll Payment Service that enables rental car customers to use high speed. cashless toll lanes to avoid having to stop and pay tolls with cash. . . . PlatePass enables rental car customers to avoid waiting in toll lines to pay cash or coins by using FasTrak toll lanes in California. . . ”9 e. A PlatePass FAQ webpage entitled “Renting with Hertz" provides, in part: “Why should I be interested? Speed and convenience. With PlatePass, you don't need to wait in long lines to pay cash so you can get where you are going faster.“o f. A PlatePass FAQ webpage entitled “Travelling to San Francisco" provides, in part: “PlatePass® is an electronic toll payment system that enables renters to use high-speed electronic toll collection lanes and bypass baclrrups at cash lanes. The PIatePass service also enables rental car customers to avoid costly toll violation fines otherwise incurred if high-speed toll lanes are used without special equipment. . . . If a customer travels on the any [sic] of the Bay Area Bridges when driving a Hertz rental car, the renter has the option of using the FasTrak® non-gated fast lanes. . . Why should I use PlatePass? Speed and convenience. With PlatePass, you don’t need to wait in long lines to pay cash so you can get where you are going faster.”“ 44. To reap this benefit, customers pay a hefty price. If PlatePass is used for a single bridge crossing, the customer is charged a $4.95 service fee for each day of the rental-including any day: on which PlatePass is M used-up to a maximum of $24.75 per rental, plus incurred tolls at the Toll Authority’s cash toll rate or highest undiscounted toll rate. Defendants have charged this price since at least May 25. 2013. 3 PlatePass webpage, [as of February 24, 2017]. 9 PlatePass webpage, [as of February 24, 2017]. 1° PlatePass webpage, [as of February 24, 2017]. “ PlatePass webpage, [as of February 24, 2017]. l 1 PEOPLE v. THE HERTZ CORPORATION. ET AL. N:\AFFmM\LI2017\170235\01174459.docE R 44 \Dm-slaUI-hLflMr-n NI N N |-‘ .- S‘oSmEfiABmEEwQSEmSBGZE Exhibit "9" O 111. The Golden Gate Bridge Converts To All Electronic Telling. 45. After years of planning-and to achieve various travel time, safety, environmental. service, and efficiency benefits-the Golden Gate Bridge converted to All Electronic Telling on March 27, 2013. This conversion had a series of practical and legal consequences for motorists paying their Golden Gate Bridge tolls. 46. First, motorists were no longer permitted to stop at the Toll Plaza. Instead, from March 27 , 2013 continuing through today, motorists travelling southbound through the Toll Plaza are instructed to “keep moving" and “do not stop.” The speed limit is 25 miles per hour. 47. Second. motorists were no longer permitted to pay their tolls in cash. Instead, from March 27, 2013 continuing through today, the District has provided motorists with several ways to pay their tolls, including the traditional Fas'l‘rak method (discussed above) and two new opfions--“One- Time Payment” and “Tell Invoice.” a. One-Time Payment. Motorists can make a One-Time Payment up to 30 days before crossing the Golden Gate Bridge or within 48 hours after. They can make this payment online or by phone using a credit card, or in person at more than a hundred locations throughout the Bay Area using cash, check, money order. or credit card. There are no added fees or penalties when making a One-Time Payment b. Toll Invoice. For motorists who do not pay through another method, a Toll Invoice is generated and mailed to the registered owner of the vehicle. The Toll Invoice is only for the toll amount due. There are no added fees or penalties. The first Toll Invoice is mailed four or more days after crossing the Golden Gate Bridge. Motorists may pay a Toll Invoice 1) by mail using a credit card, check, or money order. 2) by phone using a credit card, or 3) in person at various locations using cash, credit card, check, or money order. The Toll Invoice must be paid within 21 days of receiving the invoice to avoid a toll violation and fine. 48. Third, because these new payment options were offered, it was no longer prima facie evidence of a toll violation to cross the Golden Gate Bridge without making an immediate toll payment. (Veh. Code, § 23302(d).) In contrast, it remains prima facie evidence of atoll violation to l// 12 PEOPLE v. THE HER’IZ CORPORATION, ET AL. N:\AFFmM\112017\170235\01174459.docx ER 45 \oonqaxuz-kmn» NNNNN NNt-ID-l p-A .- mqasmhmfiwommsamgsfips Exhibit "9" 0 cross every other toll bridge in California without making an immediate toll payment. (V eh. Code, § 2330201).) 49. Fourth, there were no longer cash lanes and FasTrak-only lanes. Instead, from March 27, 2013 continuing through today. each southbound lane permits toll payment via all available payment options. 50. Despite these changes, Defendants continued to-and still do today-advertise and provide PlatePass to Hertz customers who cross the Golden Gate Bridge in the same manner and an the same terms as they advertise and provide the service to Hertz customers who cross California’s seven other toll bridges. IV. Hertz’s Gold Plus Rewards Membership Program 51. Hertz maintains a “Gold Plus Rewards” membership program (previously called “#1 Club Gold”). Membership is free and entitles members to various perks and benefits. 52. With a driver’s license and a valid credit card linked to the membership address, any individual over the age of 21 may enroll in the Gold Plus Rewards program via the hertz.com website. 53. In the course of enrolling in the Gold Plus Rewards program. customers pie-select their default decision to “accept” or “decline” various optional services that are typically made available to customers at the Hertz rental counter, including “Prepay the Fuel (Fuel Purchase Option)," “Loss Damage Waiver," “Liability Insurance Supplement,” “Personal Accident Insurance/Personal Effects Coverage," “NeverLost, The In-Car Navigation System," and “Siriusm Satellite Radio.” 54. PlatePass is not among these optional items or services that consumers pre-select. These optional items and services do not mention tolls or toll services. 55. To complete the Gold Plus Rewards enrollment process, customers agree to be bound by the Terms and Conditions applicable to Gold Plus Rewards members (“Gold Terms"). The Gold Terms provide, in part, “YOU WlLL BE RESPONSIBLE FOR AND PAY ALL TOLL OCCURRENCES.” These Gold Terms do not describe or offer PlatePass or any other toll service. (A copy of the current Gold Terms, applicable in the United States. is attached here as Exhibit B and incorporated herein by this reference.) //I 13 PEOPLE v. THE I-IERTZ CORPORATION, ET AL. N:\AFFIR1\/I\I12017\l70235\01174459.docx ER 46 soeoqaxtneum- MN 10 ggmm'fifimfigGE-‘SSG’EBSZS Exhibit "9" O O 56. According to Hertz’s 2013 Annual Report, there were over 5.6 million members of the Gold Plus Rewards program as of December 31, 2013. According to Hertz‘s 2015 Annual Report, rentals by Hertz Gold Plus Rewards members accounted for approximately 40% of worldwide rental transactions in 2015. DEFENDANTS’ UNLAWFUL, UNFAIR, AND/OR FRAUDULENT BUSINESS PRACTICES 57. The following paragraphs set forth the unlawful, unfair, and/or fraudulent business practices encountered by a typical customer who, from March 27, 2013 and continuing through today. rents a Hertz car, drives southbound across the Golden Gate Bridge, and is subsequently charged for PlatePass. 58. Hertz has sought to insulate itself from the growing chorus of anger over these practices. In order to rent a Hertz car, customers are required to waive their right to a jury trial and waive their right to participate in a class action lawsuit. 1. Customers Cannot Decline PlatePnss When Reserving Their Rental Car. 59. Most consumers commence their Hertz car rental by booking a reservation on the Internet, via the hertz.com website. To book a reservation via hertz.com. customers enter information into a series of webpages, labeled “Book a Car," “Edit Itinerary." “Choose a Car,” “Choose Extras,” and “Review & Book.” 60. On the “Book a Car" page, customers choose whether to “Book as a Member” or “Book as a Guest.“2 By booking as a member of the Gold Plus Rewards program, some fields are pro-populated and some options are pre-selected based on information previously provided by the member. 61. On the “Choose a Car” page, customers select their vehicle and choose to “Pay later" or “Save $ Pay Now."l3 For customers who choose the “Save 35 Pay Now” option, a portion of the total charges will be charged to their credit card upon completing the reservation. I // ‘2 Hertz webpage, [as of February 24, 2017]. ‘3 Hertz webpage, [as of February 24, @017]. '6 Hertz webpage, [as of February 24, 2017]. 16 PEOPLE v. THE HER'IZ CORPORATION, ET AL. N:\AFFIRM\112017\I70235\01174459.d0cE R 49 \DmfiO‘M-fiMNy-n NNNt-Ir-ti- D-l )- gfla’fififimHommqamimfifio Exhibit "9" O O 68. At the end of this reservation process. the final sentence of the “Review & Book” webpage provides, “By clicking on the “Submit" button, you confirm that you understand and accept our Rental @alification and Ramments, Terms and Conditions and you understand the Age Restrictions.” The underlined passages are hyperlinks, and the Terms and Conditions are also presented in a scrollable text box. 69. Clicking on the “Terms and Conditions" hyperlink opens a pop-up window, which provides, in part: ‘TOLLS, PLATEPASS. You are responsible for the payment of all toll charges incurred during the rental period. If PlatePass is used to pay a toll, you will be charged for tolls incurred at the applicable tolling authority's highest undiscounted rate, plus the service fee set forth on your rental reco “ (A complete copy of these Online Terms and Conditions is attached here as Exhibit C and incorporated herein by this reference.) 70. Clicking on the “Rental Qualifications and Requirements" hyperlink opens a pop-up window, which has the text “Please choose a topic" above a drop-down list of thirty-three topics. Upon selecting the “PlatePass” topic, the text in the pop-up window provides: “If PlatePass is used to pay a toll, you will be charged for tolls incurred at the applicable tolling authority’s highest undiscounted rate, plus the service fee set forth on your rental record. For further information see PlatePass® Electronic/Video Toll Pamnt." 71. The underlined passage is a hyperlink. Choking on it opens a Hertz webpage entitled “PlatePass® Toll Road Payment,” which provides information about PlatePass and concludes with the following text and hyperlink: “For more questions, please visit www.PlatePass.com.” 72. In addition to booking a reservation via the hertz.com website, customers may book a reservation by telephone, in person at a rental location, or via authorized third parties. On information and belief, customers provide essentially the same information and are presented with essentially the same options, terms, and conditions when booking a reservation through these alternate channels. 11. Customers Cannot Decline PlatePass When Picking Up Their Rental Car. 73. After booking the reservation, customers pick up their rental car at the Hertz location specified in the reservation. l// 17 PEOPLE v. THE HHUZ CORPORATION. ET AL. N:\AFFRM\I.IZOI7\170235\01174459.docztE R50 \DmQfiLn-hWNu-n NNN I0 NNNv-v-I-‘Ht-n-nt-an-IHH Exhibit "9" O O 74. Many customers must go the rental counter at the Hertz location and speak with a Hertz rental agent The agent typically offers the customer additional optional items and services, including, but not limited to, “Prepay the Fuel (Fuel Purchase Option)," “Loss Damage Waiver.” “Liability Insurance Supplement," “Personal Accident Insurance/Personal Effects Coverage," “N everLost, The In-Car Navigation System,” and/or “SiriusXM Satellite Radio.” 75. Customers affirmatively accept or decline these optional items and services. 76. PlatePass is not among these optional items and services presented to customers. Customers are afforded no opportunity to make any decision regarding PlatePass in this pick-up process. They do not accept, decline, choose, or opt out of the service. 77. Along with the car keys, customers are typically provided two printed documents: the “Rental Record" and the “Rental Agreement Terms and Conditions" (also referred to as the “Rental Jacket"). 78. In select locations, Gold Plus Rewards members are not required to go to the rental counter. They can bypass the rental counter entirely and proceed directly to their vehicles upon arrival at the facility. 79. These Gold Plus Rewards members who bypass the rental counter do not “accep " or “decline" these optional items and services at the time of pick up. Instead, they “accept" or “decline" these optional items based on the preferences they selected when establishing their membership, and which they can update via their online account at any time. PlatePass is not among the preferences Gold Plus Rewards members select when establishing their membership. Therefore, these customers are afforded no opportunity to make any decision regarding PlatePass in this pick-up process. They do not accept, decline, choose, or opt out of the service. 80. For these Gold Plus Rewards members, a copy of the Rental Record and/or the Rental Agreement Terms and Conditions may be left in the members’ vehicles or handed to them by a parking lot attendant as they exit the parking facility. III. Defendants Provide Misleading Information About Avoiding Plate 81. For guests and members alike, the entire rental car agreement between Hertz and the customer is comprised of a dizzying array of documents. When they pick up the rental car, many ~ 18 PEOPLE v. THE HERTZ CORPORATION, E1“ AL. N:\AFFDIM\L12017\1 70235\01 l74459doct R51 \DNQO‘UIAUJNp-t MNNNNNNNNHHHh-IHHH r-I Exhibit "9" O 0 customers receive at least two printed documents: a “Rental Record” and the “Rental Agreement Terms and Conditions.” (A representative copy of the Rental Record is attached here as Exhibit D and incorporated herein by this reference;17 a representative copy of the Rental Agreement Terms and Conditions is attached here as Exhibit E and incorporated herein by this reference.) 82. The “Rental Agreement Terms and Conditions," however, explains that the entire “Agreement” is comprised of these two documents fll “any other documents which you are required to sign when you rent the car, and which may be signed by you electronically.” This includes the various terms associated with booking an online reservation-rte, “Rental Qualification and Requirements,” ‘Terms and Conditions," and "Age Restrictions"-and, when applicable, the terms and conditions associated with membership in the Gold Plus Rewards program 83. Customers are not permitted to negotiate this Agreement or any of its components. Hertz’s agents have no authority to waive or alter any terms in the Agreement. In fact, the Rental Agreement Terms and Conditions specifically provide, “Rental representatives are not authorized to waive or change any terms of the Rental Agreement.” (Exhibit E, ‘11 l4(a).) This is a quintessential contract of adhesion. 84. The Rental Record is the first and only component of the entire Agreement that includes any discussion of PlatePass and its material terms. The Rental Record is six pages, printed in approximately 75-point Arial Narrow font, on paper 7.25 inches by 3.25 inches in size. 85. The first page includes a “Total Estimated Charge,” which is the sum of the following line items: the “Rental Rate" (per day), “Additional Products," “Service Charges/Taxes," and “Adjustments." Any charges that will be calculated at return-e.g., “Fuel & Service”-are identified but the price is listed as "*****." PlatePass is not listed or identified on this first page. 86. The only mention of PlatePass is on the fourth page of the six-page Rental Record, which is entitled “Important Information Regarding Tolls." A copy of a representative Rental Record is attached to this Complaint as Exhibit D. For convenience, the fourth page is reproduced here: I / l 17 All personally identifiable information has been redacted from this copy of the Rental Record. 19 PEOPLE v. THE I-[ER'I'Z CORPORATION, ET AL. N:\AFFIRM\L12017\17035\01 l74459.doexE R52 \DmxlmUI-mv-t N t- aaaahmsassmsaazss:s Exhibit "9" O O Heft _P010F8W1RT RR_ ‘ cc Illlllllllllllfllflllllllllllllllllfllllllillfllllflllllllll IMPORTANT [NFORHATION REGARDING TOLLS Yummmbmanhlh mmmuulu Plasma ”WWW LLoJoruu on WWW d lulu mmMmflwm www.mmm sum' ”43%“ «scam anemones ”mm.“ manna. ml mam magnum vmahtuea .anSenfla. 010T mmmmmmuum TO USE FLATEPASS 1N THESE AREAS. pm human I name: bl tam. You will ho bland manually n 01mm! halal. IFYOUDONO'IWISH TOLKEPLATEPASSINTI‘ESEAREAS. . mmmmmwmanmmmm MEG" RENEW. INDELAWARE ILLINOIS. INDIANA. ENNB. MARYLAND. Wm WJERSEY. NEWVORK. ‘ OHIO. PENNSYLVANIA VIRGINIA ANnfisT VIRG‘IM mumm- um TOUSEPLA ASSN ATEB. did. Ilalnmonduoul ammmmm ammmv duh mimic-Dynamo balm. [FYOUDONOTWISH'I'OLSSPLATEPASSINTl-IESESTATES, Iran the Rwandan-Warm lbs mm mm use "’6'. can In” munumwmmmmhmmmu nu a W -NII'I’B: mhflnmdommmlnummm 'IbfldIaw-al WWMMMMMM lulu mumhrqmmuuummmdhbmd uoutlmdbdu "Mutton: "Isl-um lunflnhmvmhmml'mh m lorbn -... w... www.mw t. I'D! I momma mum-um! may; - III and: .manmnmumwwuonaw ummulnduhelmdmfl-uhuwm 01.33038 Mm emu TullAuflmflia a (nun ur ' pmnzlmcpan er. rmm%%§mm%7 MMmmamaflcbmmm RVIOLATION. YWISUMWM flotation ~ '- Redacted ~ ~ __/~ 87. For many Hertz customers, this page-the fourth of a six-page Rental Record, which is one of several electronic and hardcopy contractual documents that comprise the entixe Agreement-is the first and only time they are provided any information about PlatePass. 20 PEOPLE v. THE HER'IZ CORPORATION, ET AL. N:\AFF1R1\I1\LIZOI7\I7DZ35\DI 174459.610c R 53 \DMNO‘UI-tv- eeseseeeeeesaeseeza Exhibit "9" O O 88. The representations made on this page are vague, ambiguous, incomplete, false, misleading, and/or deceptive in the following respects: a. The second paragraph identifies the purported benefit of the service: “all our vehicles . . . may use any cashless electronic toll lane.” But PlatePass provides no benefit to motorists who cross the Golden Gate Bridge. Regardless of PlatePass, motorists may use any and all of the cashless toll lanes on the Golden Gate Bridge. b. The second paragraph identifies “the SAN FRANCISCO BAY AREA BRIDG " as among the areas where PlatePass is available. The fourth paragraph provides, in full: “IF YOU DO NOT WISH TO USE PLATEPASS IN THESE AREAS, use only traditional cash toll lanes (if available) and make payment directly to the toll authority.” The Golden Gate Bridge does not maintain any “traditional cash toll lanes," so this instruction for avoiding PlatePass is inapplicable. Worse still. the disclosure fails to identify this fact, so customers are wrongly led to believe that this instruction is sufficient to avoid PlatePass on the Golden Gate Bridge. It is not. Fmafly, this disclosure does not indicate or even suggest that there are other ways to avoid or decline PlatePass when crossing the cashless Golden Gate Bridge. c. The fifih, six. and seventh paragraphs are not directly applicable because they address how PlatePass works outside of California. However, the fifth paragraph indicates that toll authorities in those states “may allow for an alternative pay method. such as payment by mail." To mention this fact-while failing to similarly indicate that the Golden Gate Bridge also accepts payment by mail (and other methods)-leaves customers with the impression that no such options are available in California, including at the Golden Gate Bridge. This is not true. d. The eighth paragraph commences, “NOTE: Certain toll roads do not accept cash. If you travel on such a toll road without a personal transponder that can be used on the toll road. you will be required to use PlatePass and be billed automatically as outlined below, or incur toll charges or violations for which you will be responsible.” This is false and/or misleading in several respects. / I / //l 21 PEOPLE v. THE HER'IZ CORPORATION, ET AL. N:\AFFIRM\L12017\170235\01174459.docx ER 54 \DMNIO‘UI#DJNH eeeaeeeeeeesaeneeza Exhibit "9" O O i. First, it is not clear that this paragraph applies to the Golden Gate Bridge. It does not indicate that the Golden Gate Bridge does not accept cash nor mention the Golden Gate Bridge at all. And it only addresses “toll roads" rather than “toll bridges." ii Second, to the extent that this instruction is intended to apply to motorists who cross the Golden Gate Bridge, it only identifies a disfavored method of avoiding PlatePass-nsing a FasTrak personal transponder. (As explained at paragraph thirty-six, supra, it takes several steps to sign-up for and use FasTrak.) For this reason, even BATA recognizes that it is highly impractical for most rental car customers to pay their Golden Gate Bridge toll via FasTrak. It instructs, “A One-Time Payment is the best option for rental vehicle users)“ The District similarly indicates, “One-Time Payments are suggested for drivers who infrequently cross the Golden Gate Bridge.“9 This disclosure in the Rental Record expressly fails to mention the preferred One-Time Payment method. iii. Third, using a Fas'I‘rak transponder is not just impractical, it is limiting. Motorists may only use a Fask transponder at the time of crossing. whereas the other payment options not mentioned here may he used before or after crossing. Therefore, FasTrak is unavailable to motorists who first learn about the Golden Gate Bridge toll procedures at the time of crossing. e. This eighth paragraph concludes by explaining that some Southern California toll roads provide another way to avoid PlatePass: they “allow for payment by phone/online within five (5) days of accessing the toll road." To mention this fact-while failing to similarly indicate that the Golden Gate Bridge also accepts payment online (and via other methods)-leaves customers with the impression that no such options are available at other California toll roads and bridges, including at the Golden Gate Bridge. This is not true. f. The ninth paragraph reiterates that in some instances, motorists may use a personal transponder to pay their tolls. This again leaves customers with the impression that ‘8 FasTrak webpage, [as of February 24. 2017]. '9 District wehpage, [as of February 24, 2017]. 22 PEOPLE v. THE HERTZ CORPORATION. ET AL. N:\AFFIRM\l12017\170235\01 174459.docx ER 55 \DOOQO‘UIAMN-n e e a e s e e e e e e e a e z e e : a Exhibit "9" C) C) transponders are the only way to avoid or decline PlatePass. This is false with respect to the Golden Gate Bridge. 89. All told, this fourth page of the Rental Record-the entire offer of the PlatePass service-does not even mention the Golden Gate Bridge, much less disclose that there are several, convenient ways to pay the bridge tolls and thus avoid PlatePass service fees. 90. In addition to the foregoing representations on page four of the Rental Record, Hertz and PlatePass make additional false and/or misleading representations with respect to avoiding or opting out of PlatePass on the Golden Gate Bridge: a. The Hertz website provides, “11’ you don't want to use PIatePass®, you must pay all tolls with cash (if cash option is available) or with your own toll transponder compatible to the toll road” (emphasis in original).20 b. The PlatePass website similarly indicates that the Golden Gate Bridge is among the facilities that no longer accept cash. “If you use any of these facilities without using a personal toll transponder you will be charged for using PIatePass as no cash option is available.“I c. Hertz distributes a brochure about PlatePass, which provides, in part, “Some toll roads no longer accept cash payments. Ifyou incur toll on these roads without using your own compatible transponder. you will be enrolled in PlatePass" (emphasis in original.) (See Exhibit A.) IV. When Crossing The Golden Gate Bridge, Customers Cannot Decline PlatePass Nor Do They Receive Its Profi‘ered Benefits. 91. In California, PlatePass is a license-plate based system. Even though customers do not sign-up, enroll, accept, or otherwise agree to the service, every Hertz rental car is still “PlatePass® enabled" or “PlatePass ready." The service cannot be turned off or disabled. 92. Even if a customer is aware that the Hertz rental car is PlatePass-enabled, the customer has no way of avoiding or declining the service at the time of crossing the Golden Gate Bridge-there 2° Hertz webpage, [as of February 24, 2017].. 2‘ PlatePass webpage, [as of February 24, 2017]. 23 PEOPLE v. THE HER'IZ CORPORATION, El‘ AL. smmmmmzssm 1744594104: ERse \DNQG‘U’IAMN- N NNN NNN Hv-Av-I i-tv-n mgmuemmuogaqouzumzs Exhibit "9" O 0 is no opportunity to pay the toll at the time of crossing. Every lane is the same, and Defendants treat passage through any lane as “use" of PlatePass. 93. Moreover, customers do not reap the service’s advertised benefit-i.e., they do not bypass slower cash lanes nor are they afforded faster passage through a lane that would otherwise be unavailable to them. 94. In stark contrast, on all other California toll bridges, motorists are presented with a real choice: 1) they can decline (or avoid) PlatePass by driving through a cash lane and paying a cash toll, or 2) they can accept (or choose) PlatePass by driving through a faster. FasTrak-only lane that would otherwise be unavailable to the motorist but for the PlatePass service. No such choice is afforded to Hertz customers on the Golden Gate Bridge. V. With Credit Card Information Provided by Hertz, ATS Charges Customers Without Proving Disclosures 0r Receiving Consent. 95. Upon returning a rental car to Hertz at the close of the rental, Hertz charges the customer for the rental car and fl optional services except for PiatePass. Customers are typically provided with a receipt. The receipt does not mention PlatePass. 96. Pursuant to its contract with the BATA, ATS pays the Golden Gate Bridge toll for every Hertz rental car customer who has not otherwise paid the toll within approximately two days of crossing the bridge. Defendants deem these customers to have used and purchased PlatePass. This practice has the effect of precluding Hertz customers from utilizing the District’s Toll Invoice payment option. 97. In order for ATS to charge these customers, Hertz provides customer billing information, including credit or debit card information, to ATS. Hertz previously obtained this billing information from customers on the Internet (when they reserved the rental car) or in person (when they picked up the rental car). 98. Between one and three weeks after the rental closes, and without providing any contemporaneous disclosures or receiving any contemporaneous consent, ATS charges the customer’s credit or debit card for two components of the PlatePass service: //I 24 PEOPLE v. THE HERTZ CORPORATION, ET AL. N:\AFFIRM\L12017\170235\01 174459.doct R57 mandala-Auto.- g S g a K e S B 8 E 5 S 8 G 3 E 5 Z 8 O K Exhibit "9" O a. a “service fee" of $4.95 for each day of the rental-including prior or subsequent days, even when the service is not used-capped at $24.75, and b. incurred tolls at the Toll Authority’s cash toll rate or highest undiscounted toll rate. 99. Each component is improper. As described in the preceding paragraphs, Hertz customers who crossed the Golden Gate Bridge never accepted or chose the optional PlatePass service nor did they receive its benefits. In other words, they never “used" or “utilized” the service, thus Defendants should not charge them for it. 100. The toll charge is also improper. Pursuant to the Rental Agreement Terms and Conditions, customers “agree to indemnify Hertz and/or American Traffic Solutions, Inc. and PlatePass LLC" for an amount equal to the amount these Defendants pay in tolls. (Exhibit E, ‘l[ 7(f).) But during all periods relevant to this litigation, Defendants have charged customers $1 more for Golden Gate Bridge tolls than what Defendants paid. a. Between September 2, 2008 and April 6, 2014, Defendants paid the District a discounted toll rate of $5.00 for Hertz customers, and then charged those customers the undiscounted rate of $6.00 as part of the PlatePass service. b. Between April 7, 2014 and June 30. 2015, Defendants paid the District at discounted toll rate of $6.00 for Hertz customers. and then charged those customers the undiscounted rate of $7.00 as part of the PlatePass service. c. Between July I, 2015 and June 30, 2016, Defendants paid the District a discounted toll rate of $6.25 for Hertz customers, and then charged those customers the undiscounted rate of $7.25 as part of the PlatePass service. d. Between July 1, 2016 and today, Defendants paid the Disu‘ict a discounted toll rate of $6.50 for Hertz customers, and then charged those customers the undiscounted rate of $7.50 as part of the PlatePass service. / / / / / / //l 25 PEOPLE v. THE HERTZ CORPORATION . ET AL. N :\AFFIRM\L12017\170235\01 l74459.docx ER58 \DmQQM-tv-a NNNN nus: >- mummgrgNHoGESSMSUSZE Exhibit "9" O 0 FIRST CAUSE OF ACTION VIOLATION OF BUSINESS AND PROFESSIONS CODE SECTION 17200 AGAINST ALL DEFENDANTS (Unfair Competitlon) 101. The People incorporate by reference the allegations contained in each paragraph above, as if those allegations were fully set forth in this cause of action. 102. California Business and Professions Code section 17200 prohibits any "unlawful, unfair or fraudulent business act or practices.” 103. From March 27. 2013 to the present, Defendants, and each of them, have engaged in and continue to engage in, aided and abetted and continue to aid and abet, and conspired to and continue to conspire to engage in unlawful, unfair and/or fraudulent business acts and practices in violation of Business and Professions Code section 17200 et seq.. including but not limited to the following: a. Each of the Defendants has violated. and continues to violate, the False Advertising Law, codified at Business and Professions Code section 17500 et seq.. as alleged in the Second Cause of Action. b. Each of the Defendants has violated, and continues to violate. the Rental Passenger Vehicle Transactions law, currently codified at California Civil Code section 1939.01, et seq. 1. Defendant Hertz is a “rental company“ as defined by Civil Code section 1939.0l(a). ii. The individuals who seek or acquire Hertz rental cars are “renters” as defined by California Civil Code section 1939.01(b) because they enter into contracts for the lease or hire of a passenger vehicle from a rental company for a period of less than 30 days. iii PlatePass is an optional service as that term is used in Civil Code sections 1939.13 and 1939.19. iv. Each of the Defendants has violated, and continues to violate, Civil Code section 1939.13, suhd. (a), which provides that a rental company shall not require the purchase of an optional service. //I 26 PEOPLE v. THE HER'IZ CORPORATION, ET AL. N:\AFFIRM\I12017\170235\01174459.docE R 59 \OQM-‘tH N eesssueegeasaazeezs Exhibit "9" O 0 v. Each of the Defendants has violated, and continues to violate, Civil Code section 1939.13, subd. (b), which provides that a rental company shall not engage in any unfair, deceptive, or coercive conduct to induce a renter to purchase an optional service. vi. Each of the Defendants has violated, and continues to violate, Civil Code section 1939.19, subd. (c), which provides that a rental company may only charge for a service if the renter could have avoided incoming the charge by choosing not to obtain or utilize the optional item or service. c. Each of the Defendants has violated, and continues to violate, the Consumer Legal Remedies Act, codified at Civil Code section 1750, et seq. i. The Consumer Legal Remedies Act is to be “liberally construed and applied to promote its underlying purposes. which are to protect consumers against unfair and deceptive business practices and to provide efficient and economical procedures to secure such protection.” (Civ. Code, § 1760.) ii. Each Defendant is a “person" as defined by California Civil Code section 1761(c). iii. The individuals who seek or acquire Hertz rental cars and PlatePass are “consumers” as defined by California Civil Code section 1761(d) because they do so for personal, family, or household purposes. iv. Defendants rent cars and provide PlatePass “for other than a commercial or business use" as defined by California Civil Code section 1761(b). v. The renn’ng of a car and the purchase of PlatePass are both “transactions” as defined by California Civil Code section 1761(e). vi. Each of the Defendants has violated, and continues to violate, Civil Code section l770(a)(5), which prohibits Defendants from representing that PlatePass has characteristics, uses, or benefits that it does not have, and Civil Code section l770(a)(14), which prohibits Defendants from representing that a transaction confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law. These provisions extend to both affirmative representations as well as omissions when a defendant has a duty to 27 PEOPLE v. THE HERTZ CORPORATION, ET AL. N:\AFFIRM\LI2017\170235\01174459.docx ER 60 Vamfla'tkll-FWNH NNN M .- mnmfifiuSSBGEqSGESEZS Exhibit "9" O 0 disclose. Defendants have a duty to disclose the fact that Hertz renters have other options to pay the Golden Gate bridge toll, thereby avoiding the PlatePass service fees, because of Defendants' active concealment and partial representations. Defendants' failure to disclose the fact that Hertz renters have other options to pay the Golden Gate bridge toll is material because customers would have elected to use these other options to avoid the PlatePass service fees had Defendants disclosed these payment options. vii Each of the Defendants has violated, and continues to violate, Civil Code section 1770(5) (9), which prohibits Defendants from advertising PlatePass with the intent not to sell it as advern'sed. Defendants’ advertisements of PlatePass, as applied to the Golden Gate Bridge, are misleading and or likely to deceive a reasonable consumer. viii. Civil Code section l770(a)(19) prohibits Defendants from inserting an unconscionable provision in a contract. The nnconscionability doctrine ensures that contracts, particularly contracts of adhesion, do not impose terms that have been variously described as overly harsh, unduly oppressive, so one-sided as to shock the conscience, or unfairly one-sided-ie., terms that are unreasonably favorable to the more powerful party. Each of the Defendants has violated, and continues to violate, Civil Code section l770(a)(l9) by inserting unconscionable PlatePass service terms into a consumer’s rental car agreement with Hertz. These include, but are not limited to, terms that are false and misleading with respect to avoiding PlatePass. They are presented via fine print, in one of several documents that comprise a quintessential contract of adhesion, at the very end of the rental car transaction. These terms, presented in this manner, impair the integrity of the bargaining process or otherwise contravene the public interest or public policy. attempt to alter in an impermissible manner fundamental duties otherwise imposed by the law, and/or seek to negate the reasonable expectations of the nondrafting party. d. Each of the Defendants has violated, and continues to violate, the Restore Online Shoppers’ Confidence Act, codified at 15 U.S.C., section 8401 et seq. i. Congress enacted the Restore Online Shoppers’ Confidence Act, effective December 29, 2010, because “[c]onsumer confidence is essential to the growth of online commerce. To continue its development as a marketplace, the Internet must provide consumers with 28 PEOPLE v. THE HER'IZ CORPORATION, ET AL. N:\AFFIRM\I12017\170235\01174459.docx ER 61 \OmflmUI-AUNH MNN NNN H mqmaeumagogsaagssza Exhibit "9" 0 clear, accurate information and give sellers an opportunity to fairly compete with one another for consumers’ business." (15 U.S.C. § 8401.) ii. Defendant Hertz is an “initial merchan " as defined by 15 U.S.C. section 8402, subd. (d)(l). iii. Defendant ATS is a “post-transaction third party seller" as defined by 15 U.S.C. section 8402, subd. (d)(2). iv. Defendant Hertz has violated, and continues to violate, 15 U.S.C. section 8402, subd. (h), which prohibits initial merchants from disclosing the credit card, debit card, or other billing information that Hertz uses to charge its customers. to ATS for use in an Internet-based sale of services from ATS. v. Defent ATS has violated, and continues to violate, l5 U.S.C. section 8402, subd. (113(1), which requires post-transaction third party sellers to make specific disclosures before obtaining the consumer’s credit card information. vi. Defendant ATS has violated, and continues to violate. 15 U.S.C. section 8402, subd. (a)(2). which requires post~transaction third party sellers to receive express informed consent from the consumer for the PlatePass charge. vii. A “Negative option feature” means, in an offer or agreement to sell or provide any goods or services, a provision under which the customer’s silence or failure to take an affirmative action to reject goods or services or to cancel the agreement is interpreted by the seller as acceptance of the offer. (16 C.F.R. § 310.2.) viii. Defendant ATS has violated, and continues to violate. 15 U.S.C. section 8403, subd. (1), which prohibits ATS from charging consumers for PlatePass-sold in transactions effected on the Internet through a negative option feature-unless ATS clearly and conspicuously discloses all material terms of the transaction before obtaining the consumer’s billing information. ix. Defendant ATS has violated, and continues to violate, 15 U.S.C. section 8403. subd. (2), which prohibits ATS from charging consumers for PlatePass-sold in transactions effected on the Internet through a negative option feature-unless ATS obtains the consumer’s express informed consent before charging the consumer’s credit or debit card for PlatePass. 29 PEOPLE v. THE HER’I'Z CORPORATION. ET AL. N:\AFFIRM\LIZOI7\170235\01 l74459.docx ER 62 \QWQGM-§UMH N anmaaseeeeezaezeezs Exhibit "9" 0 e. Defendants have obtained money from consumers-those who have paid PlatePass service fees and an inflated toll charge for crossing the Golden Gate Bridge-by the exercise of undue influence, menace or threat, compulsion or duress, and/or mistake of law and/or feet. As a result, Defendants are in possession of money which in equity belongs to these consumers, and which should be refunded to them. f. Defendants’ business acts and practices, as set forth in this Complaint, are unfair because they offend established public policy; they cause harm to consumers that greatly outweighs any benefits; and/or because they are immoral, unethical, oppressive, unscrupulous and/or substantially injurious to consumers. g. Defendants’ business acts and practices, as set forth in this Complaint, are fraudulent because they are likely to deceive members of the public. i. These fraudulent business acts and practices include, but are not limited to, Defendants’ representations characterizing PlatePass as an optional service. describing the benefits of PlatePass, and explaining the method for avoiding PlatePass. ' ii. Defendants have a duty to disclose the fact that Hertz customers have other options for paying the Golden Gate Bridge toll and thereby avoiding the PlatePass service fees because Defendants make partial representations regarding the options for avoiding the PlatePass service fees and actively conceal the fact that Hertz customers have other options. iii Defendants’ failure to disclose the fact that Hertz customers have other options for paying the Golden Gate Bridge toll and thereby avoiding the PlatePass service fees, and its attendant active concealment and partial representations concerning that fact, is material because a reasonable consumer would deem the existence of the option to avoid the service fees important in determining his or her options with respect to paying the Golden Gate Bridge toll. iv. Defendants’ failure to disclose the fact that Hertz customers have other options for paying the Golden Gate Bridge toll and thereby avoiding the PlatePass service fees, and its attendant active concealment and partial representations concerning that fact, is likely to deceive members of the public. Ill 30 PEOPLE v. THE HER'IZ CORPORATION, ET AL. N:\AFFIRM\LIZOI7\170235\01 l74459.doex ER 63 \DMQQUI-P-mNt- sssuseeeeeesaeeeezs Exhibit "9" SECOND CAUSE OF ACTION VIOLATION OF BUSINESS AND PROFESSIONS CODE SECTION 17500 AGAINST ALL DEFENDANTS (Untrue and/or Misleading Representations) 104‘ The People incorporate by reference the allegations contained in each paragraph above. as if those allegations were fully set forth in this cause of action. 105. California Business and Professions Code section 17500 et seq., prohibits the dissemination of untrue or misleading statements concerning the performance of services. 106. From March 27, 2013 to the present, Defendants, and each of them, have engaged in and continue to engage in, aided and abetted and continue to aid and abet, and conspired to and continue to conspire to engage in business acts or practices that constitute violations of Business and Professions Code section 17500 et seq., by making or causing to he made untrue or misleading statements with the intent to induce members of the public to purchase Defendants’ services, including but not limited to the following: a. Defendants' statements regarding how Hertz rental car customers who cross the Golden Gate Bridge may opt out of or avoid PlatePass, including but not limited to Defendants’ statements on their websites and printed brochures. b. Defendants' statements regarding the benefits of PlatePass for Hertz rental car customers who cross the Golden Gate Bridge, including but not limited to Defendants' statements on their websites and printed brochures. 107. At the time all such statements were made, Defendants knew, or by the exercise of reasonable care should have known, that the representations were untrue or misleading. Such statements are likely to deceive members of the public. PRAYER FOR RELIEF WHEREFORE, the People respectfuuy request that the Court enter judgment in favor of the People and against Defendants, jointly and severally. as follows: 1. That the Court enjoin Defendants, their successors, agents, representatives, employees. assigns, and any and all other persons who act in concert or participation with Defendants, by permanently restraining them from performing or proposing to perform or aiding and abetting any unfair competition as defined in Business and Professions Code section 17200 and any false 3 1 PEOPLE v. THE l-IER’I'Z CORPORATION. ET AL. N:\AFFIRM\U2017\170235\01 174459.110c ,_. NNNNN NNNHD-It-tu-Iv-A D-‘H \DWHmUI-hwu Exhibit "9" 0 advertising as defined in Business and Professions Code section 17500, including, but not limited to, the acts and practices alleged in this Complaint; 2. That the Court order Defendants to make restitution, with interest, to consumers all money received or acquired by Defendants by means of any practice that constitutes unfair competition, under the authority of Business and Professions Code sections 17203 and 17535; 3. That the Court assess a civil penalty of $2,500.00 against each Defendant for each violation of Business and Professions Code section 17200, under the authority of Business and Professions Code section 17206; 4. That the Court assess a civil penalty of $2,500.00 against each Defent for each violation of Business and Professions Code section 17500. under the authority of Business and Professions Code section 17536; 5. That the Court order Defendants to pay the costs of suit. including costs of investigation; and 6. That the Court provide such further and additional relief as the Court deems just, proper and equitable. Dated: March 1, 2017 DENNIS J. HERRERA City Attorney RONALD P. FLYNN Chief Deputy City Attorney YVONNE R. MERE Chief of Complex & Affirmative litigation MATTHEW D. GOLDBERG SARA J. EISENBERG Deputy City Attorneys Attorneys for Plaintiff THE PEOPLE OF THE STATE OF CALIFORNIA. acting by and through San Francisco City Attorney DENNIS J. HERRERA 32 PEOPLE v. THE HERTZ CORPORATION, 31‘ AL. N:\AFFIRM\[12017\170235\01 174459410c 65 Case 1:15-cv-22959-JEM :cument 64 Entered on FLSD Doc 07/18/2017 Page 1 of 13 Exhibit "10" UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA Miami Division Case No. l5-22959-CIV-MARTINEZ-GOODMAN MARSHALL MAOR, individually and on behalf of all others similarly situated, Plainti II‘. vs. DOLLAR THRIF T Y AUTOMOTIVE GROUP, INC. (d/b/a DOLLAR RENT A CAR), et al., Defendants, ORDER DENYING DEFENDANTS’ MOTION TO DISMISS THIS CAUSE came before the Court upon Defendants Dollar Thrifty Automotive Group, Inc. d/b/a Dollar Rent A Car, Dollar Rent A Car, Inc., and DTG Operations, Inc’s (collectively “Dollar") Motion to Dismiss Plaintiff’s Class Action Complaint for Breach of Contract, Breach of Implied Covenant of Good Faith and Fair Dealing, and Violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) [ECF No. 21]. Dollar, pursuant to Federal Rule of Civil Procedure l2(b)(6), seeks dismissal of all Plaintiff Marshall Maor‘s claims. Specifically. Dollar presents several arguments in the motion: (1) Maor has not alleged a breach of a contract claim, because the contract terms do not require the toll administrative fee to be related to Dollar’s underlying toll administrative costs; (2) the voluntary payment doctrine bars Maor’s breach of contract claim; (3) Florida law does not recognize a claim for breach of implied covenant of good faith and fair dealing without a properly pleaded breach of contract claim; (4) Florida law does not recognize a claim for breach of implied covenant of good faith and fair dealing if the claimed covenant would vary the express terms of a contract; and (5) the ER 66 Case 1:15-cv-22959-JEM tcument 64 Entered on FLSD Doc 07/18/2017 Page 2 of 13 Exhibit "10" FDUTPA claim fails because the fees were fully disclosed, and thus, neither deceptive nor unfair. [See id.]. For the reasons explained below, this Court denies Dollar’s Motion to Dismiss. I. Background This case arises out of Dollar Rent-A-Car’s rental contract provision that provides for charging certain customers toll costs and an administrative fee per use of an electronic toll booth. [ECF No. l].[ In 2008, Dollar implemented Electronic Toll Collection (“ETC”) for its rental cars, allowing customers to use cashless toll systems. [See id 1i2]. Dollar’s standard rental contract contains an express term requiring customers who decline a toll package to pay for any electronic tolls incurred, plus an administrative fee of $15 per occurrence.2 [See id. ‘ll‘l? 2-3]. The specific provision states: All toll tines (including the use of all cashless toll roads without the purchase of the toll By-pass option) are subject to an admin fee of $15 per violation/occurrence. You authorize us to release your billing/rental information to PlatePass, LLC and ATS Processing Services, LLC to process and bill to your credit card or billing account for the above-mentioned charges. [Id '1 3]. Dollar collects payment for these charges through a third party, and at the time of collection, the third party provides a Frequently Asked Questions document that describes why the customer was charged an administration fee: “[p]er your rental agreement, an administration fee was charged to cover the costs of processing your citation on behalf of the Rental Car Company.” [See id. 1111 3. 48]. Dollar’s actual costs to process electronic toll collection are only a 1 “In evaluating the sufficiency ot‘a complaint, a court ‘must accept the well pleaded facts as true and resolve them in the light most favorable to the plaintiff.” Beck v. Deloitte & Touche, 144 F.3d 732, 735 (l lth Cir. 1998) (quoting St. Joseph ’5 Hosp. Inc. v. Hosp. Corp. of Am, 795 F.2d 948, 954 (l lth Cir. 1986). 2 This administrative fee was $25 per occurrence until sometime in 2011. [ECF No. 1 ll 2 n.l ]. ER 67 Case 1:15-cv-22959-JEM ucument 64 Entered on FLSD Doc 07/18/2017 Page 3 of 13 Exhibit "‘10" fraction of the administrative fees charged to customers, and Dollar’s fees are three times that of the next most expensive competitor. [See id. 1H] 4, 8, 10, 37-38]. Plaintiff Marshall Maor is a citizen of New York. While travelling in Florida, Maor contracted with Dollar, declined atoll package, rented a vehicle, and used an electronic toll booth. [Id 1,] 45]. Dollar subsequently sent Maor a “Dollar Rent A Car Toll Charge Notice[,]” instructing Maor that he was subject to a toll charge of $1.37 and an administrative fee of $15.00. [Id 11 47]. Maor paid the fee. [Id 11 50]. Maor brings this class action on behalf of himself and those similarly situated: “All Dollar customers who rented (or will rent) Dollar vehicles for pick up in Florida and who paid (or will pay) Dollar’s $15 or $25 per toll administration fee commencing January 1, 2008.” [1d, 1] 51]. The Complaint contains three claims, all brought under Florida law. Maor alleges that Dollar breached the express terms of its contract with customers by charging an administrative fee "to cover the costs of processing" toll citations, while only using a fraction of the fee to cover such costs. [Id 1] 63]. Furthermore, Maor alleges that Dollar breached an implied covenant of good faith and fair dealing to which the contract was subject, because Dollar charged customers an administrative fee that was not based on covering the costs of processing toll citations. [Id_ {[1] 71-72]. Finally, Maor alleges that Dollar misrepresented the nature and purpose of the administrative fee, deceiving customers to their detriment, such that the conduct was unconscionable, deceptive. or unfair and violated the FDUTPA. [Id. [HI 67-68]. 11. Motion to Dismiss “When considering a motion to dismiss, all facts set forth in the plaintiff‘s complaint ‘arc to be accepted as true and the court limits its consideration to the pleadings and exhibits attached thereto.m Grossmarr v. Nationsbank NA, 225 F.3d 1228, 1231 (11th Cir. 2000) (quoting Lopez v. First Union Na! ’1 Bank of Fla, 129 F.3d 1186, 1189 (11th Cir. 1997)). “Federal Rule of Civil 3 ER 68 Case 1:15-cv-22959-JEM )cument 64 Entered on FLSD Doc 07/18/2017 Page 4 of 13 Exmbfl"10" Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the plcader is entitled to relief,‘ in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.N Bell At]. Corp. v. Twombly, 550 US. 544, 555 (2007) (quoting Fed. R. C iv. P. 8: Conley v. Gibson. 355 US. 41, 47 (1957)). Thus, a plaintiff is not required to make detailed factual allegations; however, “a plaintiff‘s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 US. at 555. “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 US. 662, 678 (2009). “Factual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even ifdoubtful in fact).” Twombly, 550 US. at 555. Maor’s claims survive this Motion to Dismiss because Maor has plausibly pleaded the substantive elements of claims for breach of contract, breach of implied covenant of good faith and fair dealing, and a violation of FDUTPA. The Court determines that: (1) the contract terms allegedly define “administrative fee” as a cost assessed for a specific purpose to be passed through to a third party, which Dollar may have breached by failing to pass through the full cost; (2) notwithstanding that the voluntary payment doctrine is an affirmative defense generally inappropriate for resolution on a motion to dismiss, Maor did not know the facts of Dollar’s administrative fee which he paid, and thus the doctrine does not apply; (3) because the breach of contract claim is sufficiently pied, the claim for breach of an implied covenant is permitted; (4) Maor’s allegation that Dollar breached an implied covenant is about Dollar collecting more in toll administration fees than required to cover their costs, and not about varying express contract ER 69 Case 1:15-cv-22959-JEM cument 64 Entered on FLSD Doc 07/18/2017 Page 5 of 13 Exhibit "10" terms; and (5) Dollar’s conduct, as alleged, was deceptive and unfair. The Court discusses each claim in turn. A. Breach of Contract Under Florida law, the elements of a breach of contract claim are: “(1) the existence ofa contract; (2) a material breach of that contract; and (3) damages resulting from the breach.” Vega v. T-Mabile USA, Incl, 564 F.3d 1256, 1272 (11th Cir. 2009) (citing Friedman v. NY. Life Ins. Co, 985 So. 2d 5 6, 58 (Fla. 4th DCA 2008)). In determining whether there has been a breach of contract, "where the language of a contract is unambiguous and not subject to conflicting inferences, construction of the contract is a question of law for the court.” Tulepan v. Roberts, No. l4~cV<80574, 2015 WL 23 5441, at *14 (SD. Fla. Jan. 16, 2015) (applying Florida law). Where a contract fully and unambiguously discloses a fee, certain courts have held that there can be no breach. See, e. g., Sallee v. Dollar Thrifty Automotive Grp., Inc, No. 14-CV-250- GKF~PJC, 2015 WL 1281518, at *6 (ND. Okla. Mar. 20, 2015).3 In Sal/ea, the plaintiffs used an electronic toll lane four times without purchasing Dollar’s toll bypass option, and subsequently alleged that Dollar breached the standardized rental contract by charging an administrative fee relating to each of the tolls incurred that purportedly exceeded Dollar’s actual administrative costs. Id. at *1. The court held that Dollar’s conduct fully complied with the terms of the contract and therefore there could not be a breach: Plaintiffs in this case rejected the toll by-pass option and agreed to the terms of the toll fee provision which was clearly disclosed and explained in the rental 3 The Court reviewed Sailing v. Budge! Rem-A-Car Sys., Inc, No. 09~cv-2160, 2010 WL 2803081 (ND. Ohio July 14, 2010), put forward as support by Dollar on this Motion to Dismiss. In addition to being non-binding on this Court, Sailing involved a motion for summary judgment and its reasoning stemmed from a developed factual record and weighing competing interpretations of contract terms, considerations not appropriate on a motion to dismiss. Id. at *3~ 6. ER 70 Case 1:15-cv-22959-JEM ocument 64 Entered on FLSD Doc 07/18/2017 Page 6 of 13 Exhibit "10" agreement. Plaintiffs recognize they were charged precisely the amount they agreed to under the contract. Even under the facts as alleged by plaintiffs, Dollar fully disclosed and explained the toll fee provision to which plaintiffs voluntarily agreed. Dollar’s conduct was strictly compliant with the terms of the contract, and there was no breach. The court accordingly dismisses plaintiffs’ claims for breach of contract. 1d. at *6. Similarly, in Ramon v. Budget Rent-A-Car System. Inc, the plaintiff asserted a breach of contract claim because the overall vehicle rental cost was higher than expressed in the rental contract due to an additional refueling service charge. No. ClV.A.06-1905(WJ M), 2007 WL 604795, at *4 (D.N.J. Feb. 20, 2007). The refueling service charge was "clearly identified and explained" within the contract. Id. Accordingly, the court held that the plaintiff was “charged the precise amount he agrccd to under the contract” and that this could not “possibly amount to a breach.” 1d. However, if a fee is described in a contract as for a specific purpose or based on actual costs, then not using the fee for that purpose or basing it on those costs could constitute a breach. See Deere Comm. LLC v. Cemex Cons/r. Materials Florida. LLC, 198 F. Supp. 3d 1332, 1341 (SD. Fla. 2016); Bowe v. Pub. Storage, No. 1:14-CV-21559-UU, 2014 WL 12029270, slip op. at *4 (SD. Fla. July 2, 2014); see also Costa V. Kerner In! ’I Resorts. Inc, No. 11-60663, 201 1 W1. 2519244, at *4 (SD. Fla. 2011) (discussing that the plaintiff‘s claim for breach of t“ contract would have survived a motion to dismiss if the plaintiff alleged that the mandatory housekeeping gratuity and utility service fee’ went to neither the housekeeping staff nor to pay the utility service fee”). In Deere, the plaintiff brought a breach of contract claim on the basis that, while the contract represented that "fuel surcharges” would be based on underlying fuel prices, the defendant, in fact, did not base fuel surcharges on fuel prices. 198 F. Supp. 3d at 1341. The Court held these allegations were sufficient to survive a motion to dismiss. 1d. at 1342. In Bowe, the defendants argued that they were simply complying with the terms of a rental 6 ER 71 Case 1:15-cv-22959-JEM tcument 64 Entered on FLSD Doc , 07/18/2017 Page 7 of 13 Exhibit "10" agreement in charging for insurance as disclosed in the contract. 2014 WL 12029270 at *3. However, the Court decided that a claim for breach of contract was adequately pled because plaintiffs alleged that the contract identified “insurance charges as pass-through charges not retained by [Defendant,]” and "that Defendant breached those provisions by failing to pass- through the full amount that Plaintiff paid for insurance.” Id. at *4~5. While the existence of a contract is not in dispute, this case appears to turn on what Dollar means by an “administrative fee” within its contractual relationship with customers. Dollar argues that it is simply a $15 fee per toll occurrence, as stated by the purportedly unambiguous language of the rental contract, and that the contract does not restrict how Dollar may put that administrative fee to use or specify on what the fee is based. If this encapsulated Maor’s allegations, then this case would be like Sallee or Ramon: there can be no breach where the defendant charged the plaintiff “the precise amount he agreed to under the contract." See Ramon, 2007 WI. 604795 at *4; see also Sallee, 2015 WL 1281518 at *6. But Maor goes further, alleging that during their contractual relationship, Dollar, in collecting this administrative fee, sent him a document that describes the administrative fee “per your rental agreement” charged to “cover the costs” of processing tolls.4 [See ECF No. 1, 1111 3, 48]. The parties dispute the meaning of the contract terms, specifically whether Dollar had an obligation to pay all toll administrative fees to “cover the costs” of toll processing. In fact, Dollar disputes that the additional document 4 In both Deere and Bowe, the courts considered explanations of contract terms from alleged parol evidence in determining whether to dismiss claims in those respective actions. See Deere, 198 F. Supp. 3d at 1341 (referring to the defendant’s website description of “fuel surcharges” as “cost recovery charges"); Bowe, 2014 WL 12029270 at *4 (recognizing that the complaint alleged provisions in “the Insurance Addendum that identify the insurance charges as pass- through charges that are not retained by [defendant]"). 1n the instant case, Maor has alleged that the document sent by Dollar defines the purpose of the administrative fee and that the document specifically relates to the rental contract central to this action. [See ECF No. 1, 1111 3, 48]. ER 72 Case 1:15-cv-22959-JEM cument 64 Entered on FLSD Doc..,, 07/18/2017 Page 8 of 13 Exhibit "10" referred to by Maor is part of the contract at all. However, to decide whether the additional document is part and parcel of the contract or to decide the meaning of the disputed terms at this preliminary stage would entail a factual inquiry more appropriate at a further stage of the proceedings. As alleged, the administrative fee appears to be charged to pass through underlying toll administration costs from Dollar to its customers. By collecting more than necessary to pay these costs, and by not passing those amounts on to the toll processing company, Maor alleges that Dollar breached the existing contract. This claim is analogous to those claims made in Deere and Rowe, where courts denied motions to dismiss because the complaints alleged the breach of a contract term imposing costs on customers that were labeled for specific purposes or based on specific costs. See Deere, 198 F. Supp. 3d at 1341; Bowe, 2014 WL 12029270 at *4. Dollar also argues that the breach of contract claim should be dismissed, because the voluntary payment doctrine bars a claim for breach of contract if a party makes a voluntary payment “with knowledge of the facts" of the payment. See City of Miami v. Keion, 115 So. 2d 547. 551 (Fla. 1959) However, “the voluntary payment doctrine is an affirmative defense that may not be raised on a motion to dismiss, as it entails a fact-based inquiry not suited for resolution on a Rule 12(b)(6) motion." See Deere, 198 F. Supp. 3d at 1342 (citing Schojan v. Papa John’s Im'l Inc, 34 F. Supp. 3d 1206, 1210-11 (M.D. Fla. 2014)); US. v. Cayman Vill. Condo Ass '71. Inc. No. 12-61797~Civ., 2013 WL 1665846 at *1 (SD. Fla. Apr. 17, 2013) (“[T]he issue of voluntary payment ofien entails a fact-based inquiry and is not suited for resolution at the dismissal stage“) (citing Pacific Mur. Life Ins. Co. of Cal. v. McCaskill. 170 So. 579, 583 (Fla. 1936)). Bur see Sanchez v. Time Warner. Inc. No. 98-211~CIV-T-26A. 1998 WL 834345 (MD. Fla. Nov. 4, 1998) (dismissing a breach of contract claim because the ER 73 Case 1:15-cv-22959-JEM tcument 64 Entered on FLSD Doc 07/18/2017 Page 9 of 13 Exhibit "10" complaint contained factual allegations as to what facts the plaintiff knew at the time of his voluntary payment, supporting application of the voluntary payment doctrine). Even if the Court decided that the voluntary payment doctrine should be considered at this preliminary stage, the Complaint does not contain allegations to support the doctrine. Maor alleges that-at the time of his voluntary payment of the administrative fee-~he did not know that the fee was mostly retained by Dollar as profit, instead of being used to cover the costs of toll processing, because those facts were “secret” and “undisclosed." [See ECF No. 1 111141, 63]. Therefore, dismissal of Plaintiff‘s breach of contract claim is not warranted at this time. B. Breach of an Implied Covenant of Good Faith and Fair Dealing A claim for a breach of the covenant of good faith and fair dealing must be dismissed when such a claim "cannot be maintained under Florida law in the absence of a breach of an express term of a contract.” Centurion Air Cargo, Inc. v. UPS Co, 420 F.3d 1 146, 1 152 (11th Cir. 2005) (citing Cox v. CSXIntermodal, Inc, 732 So. 2d 1092, 1097 (Fla. lst DCA 1999)). As noted previously, Maor has sufficiently pleaded a breach of contract claim. See supra Part ILA. Accordingly, he may maintain his claim for breach of an implied covenant of good faith and fair dealing. Dollar argues that the implied covenant claim should be dismissed because “the implied covenant of good faith . . . is a gap-filling default rule which comes into play when a question is not resolved by the terms of the contract or when one party has the power to make a discretionary decision without defined standards." Speedway SuperAmerica, LLC v. Tropic Enters, Inc, 966 So. 2d 1, 3 (Fla. 2d DCA 2007) (internal quotation marks omitted). Furthermore, “the implied covenant of good faith should not be invoked to override the express terms of the agreement between the parties.” Insurance Concepts & Design, Inc. v. Heallhplan Services. Inc. 785 So. 2d 1232. 1234 (Fla. 4th DCA 2001). 9 ER 74 Case 1:15-cv-22959-JEM cument 64 Entered on FLSD Docl W, ,I7/18/2017 Page 10 of 13 Exhibit "10" In this case, Maor alleged that Dollar's contract terms notified him that he would be charged a $15 administrative fee per toll occurrence, but also stated that the administrative fee was charged to cover the costs of toll processing. These terms exist in some tension with one another: does Dollar charge $15 per occurrence, regardless of the underlying toll administration costs, or does Dollar limit its collection of fees to that necessary to “cover” its toll administration costs, which would be the reasonable expectation of Dollar‘s customers? This tension between contract terms creates a gap that the implied covenant of good faith and fair dealing is intended to fill. See Speedway, 966 So. 2d at 3. Taking all the allegations in the Complaint as true, as this Court is required to do, Dollar appears to have had discretion and thus a potential duty of good faith and fair dealing within the execution of the contract to only collect the administrative costs it incurred; as such, by collecting more than necessary to “cover” those costs, Dollar may have breached the implied covenant of good faith and fair dealing. Thus, Dollar’s arguments seeking dismissal of the implied covenant claim, at this stage ofthe proceedings, are unavailing. C. Violations of the FDUTPA The F DUTPA prohibits “unfair or deceptive acts or practices in the conduct of any trade or commerce.” Fla. Stat. § 501.204(l). To state a FDUTPA claim, a plaintiff must allege “(1) a deceptive act or unfair trade practice; (2) causation; and (3) actual damages." Dolphin LLC v. WC] (Ting/3.. Inc, 715 F.3d 1243, 1250 (11th Cir. 2013) (citing Rollins, Inc. v. But/and, 951 So. 2d 860, 869 (Fla. 2d DCA 2006)). Deception occurs “if there is a representation, omission, or practice that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer’s detriment." Zlornick v. Premier Sales Group, Inc. , 480 F.3d 1281, 1284 (11th Cir. 2007) (quoting PNR, Inc. v. Beacon Prop. Mgmr., Inc., 842 So. 2d 773. 777 (Fla. 2003)). This standard “requires a showing of ‘probable. not possible, 10 ER 75 Case 1:15-cv-22959-JEM cument 64 Entered on FLSD Docl ,, 17/18/2017 Page 11 of 13 Exhibit "10" deception‘ that is ‘likely to cause injury to a reasonable relying consumer.m Id. (quoting Millennium C ommc 'ns & Fulfillment, Inc. v. Office of the Art 'y Gen, 761 So. 2d 1256, 1263 (Fla. 3d DCA 2000)). An unfair practice is “one that offends established public policy and , . . [one that] is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers” Herrick v. Ideal Image Dev. Corp, 372 F. App’x 985, 992 (11th Cir. 2010) (quoting Samuels v, King Motor Co. of Fort Lauderdale, 782 So. 2d 489, 499 (Fla. 4th DCA 2001)). Courts have held that charges that are purported to be passthrough charges for specific expenses, but are in fact profit generating fees disguised as costs, are violations of the FDUTPA. In Latman v. Costa Cruise Lines, 758 So. 2d 699 (Fla. Dist. Ct. App. 2000), Costa‘s cruise tickets disclosed a total price, which included the cruise price plus port charges. Id. at 701. Although the separate prices were disclosed, port charges were not defined. Plaintiffs claimed “‘port charges‘ necessarily inform[ed] the consumer that these [were] ‘pass-through’ charges paid by the cruise line to the relevant port authorities,” and that by keeping a part of this charge, Costa had violated the FDUTPA: Plaintiffs allege, and for present purposes it is accepted as true, that in fact the cruise lines passed through only a portion of the port charges to third parties, and kept the remainder for themselves. Plaintiffs alleged that this practice-collecting port charges but keeping a part of the port charges for their own account~ amounted to an unfair and deceptive trade practice for purposes of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”). Id. The court agreed, ruling that this was a deceptive practice because port charges “constitute[d] a representation to a reasonable consumer that these [were] ‘pass-through’ charges which the cruise line [would] pay to the relevant port authorities (and possibly others)” 1d. at 703. See also Costa v. Kerner In! ’I Resorts, Inc., No. 1140663, 2011 WL 2519244, at *4 (SD. F la. 2011) (FDUTPA claim alleged where defendant kept some of the fees purportedly for third parties). 11 ER 76 Case 1:15-cv-22959-JEM cument 64 Entered on FLSD Doc 17/18/2017 Page 12 of 13 Exhibit "10" The court added that “[r]eliance and damages [were] sufficiently shown by the fact that the passenger parted with money for what should have been a ‘pass-through’ port charge, but the cruise line kept the money.” Larman, 758 So. 2d at 703. The court also explained that the relevant inquiry is how a reasonable consumer would interpret the term “port charge.” Id. The court reasoned that “the term necessarily constitute[d] a representation to a reasonable consumer that these [were] ‘pass-through’ charges which the cruise line [would] pay to the relevant port authority." Id. Dollar argues that the contract terms are not deceptive nor unfair largely because the $15 administrative fee is plainly disclosed in the document signed by customers at the time of rental. Because Dollar merely collected the disclosed fee, it argues that it cannot be violating the FDUTPA in abiding by the express terms of the agreement. See Indulgence Yacht Charters, Ltd. v. Ardell Inc, No. 08-60739, 2008 WL 4346749, at *7 (SD. Fla. Sept. 16, 2008) (“Courts routinely dismiss FDUTPA claims where those claims are directly and fully rcbutted by express evidence in a governing written contract”); see also Circeo-Loudon v. Green Tree Servicing LLC, No. l4-civ~21384, 2015 WL 1914798, at *4 (SD. Fla. Apr. 27, 2015) (noting that “the performance of a contract in accordance with the terms of the agreement cannot constitute an unfair or deceptive act”). Again, Maor does not dispute that Dollar disclosed a $15 administrative fee per toll occurrence. But Maor also alleges that Dollar described this fee as charged to him to “cover” the costs of toll administration, and then further alleges that Dollar’s costs of toll administration are only a small fraction of the fees charged to him by Dollar. Dollar was thus purportedly profiting from a fee described as a pass-through charge to cover toll administration expenses, a fact that Dollar kept secret from customers. Maor therefore alleges a deceptive practice that damages 12 ER 77 Case 1:15-cv-22959-JEM ,cument 64 Entered on FLSD Docl.-. ,7/1812017 Page 13 of 13 Exhibit "10" consumers by charging them more than necessary under the guise of a pass-through cost for a specific purpose. Such a practice, if true, could be viewed as “immoral, unethical, oppressive, unscrupulous [and] substantially injurious to customers.” See Samuels, 782 So. 2d at 499. Dollar’s arguments that the Court should dismiss the FTDUPA claim thus fail. III. Conclusion Maor has adequately alleged claims for breach of contract, breach of implied covenant of good faith and fair dealing, and violation of the FTDUPA. As such, it is hereby: ORDERED AND ADJ UDGED that l. Defendants’ Motion to Dismiss Plaintiff‘s Class Action Complaint is DENIED [ECF No. 21]. Defendants shall file an answer to Plaintiff’s Class Action Complaint on or before August 4, 2017. 2. Any other presently pending motions are DENIED AS MOOT. 3. The Clerk is directed to LIFT the STAY in this matter. The Court shall reset all unexpired pre-trial deadlines and the trial date by separate order. DONE AND ORDERED in Chambers at Miami, Florida, this is day ofJuly, 2017. JOSE E TINEZ ‘ UNITED TTES DISTRICT IJUDGE Copies provided to: Magistrate Judge Goodman All Counsel of Record 13 ER 78 Case 1:15-cv-22959-JEM ocument 1 Entered on FLSD Docl 18/06/2015 Page 1 of 21 Exhibit "11" UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MARSHALL MAOR, individually and on Case No. behalf of all others similarly situated, Plaintiff, Judge vs CLASS ACTION COMPLAINT DOLLAR THRIFTY AUTOMOTIVE GROUP, JURY "u“L DEMANDED INC. (d/b/a DOLLAR RENT A CAR), DOLLAR RENT A CAR. [NC., and DTG OPERATIONS, lNC., Defendants. Plaintiff, Marshall Maor, individually and on behalf of all Others similarly situated. for his class action complaint against Defendants Dollar Thrifty Automotive Group, Inc. (d/b/a Dollar Rent A Car), Dollar Rent A Car, Inc., and DTG Operations, Inc. (together “Dollar”), by and through his attorneys, alleges upon personal knowledge as to himself and his acts and upon information and belief and the investigation of counsel as to all other matters as follows: 1. Plaintiff brings this case on behalf of renters of vehicles from Dollar in connection with Dollar’s misrepresentations about the true purpose of “administration fees" charged in connection with Dollar’s rental vehicles. 2. Since at least 2008, Dollar has charged its customers who travel on toll roads that utilize electronic toll collection (“ETC”) service, an additional $15 or $251 per toll representing 1 Until November 201 l, Dollar’s administrative fee was $25 per toll. Sometime during that year Dollar reduced this fee to $15 per toll. Other than the reduction in amount, Dollar’s ETC program remains the same. 5055721 ER 79 Case 1:15-cv-22959-JEM ocument 1 Entered on FLSD Docl 8/06/2015 Page 2 of 21 Exhibit "11" that these charges are for administrative fees in connection with Dollar’s ETC program. By November 2011, Dollar had reduced this fee to $15 per toll and had capped the amount of administration fees at $105 per rental. 3. When customers pick up a rental car, Dollar presents them with a standard form contract that states, in relevant part, “All toll fines (including the use of all cashless toll roads without the purchase of the toll By-pass option) are subject to an admin fee of $15 per violation/occurrence. You authorize us to release your billing/rental information to PIatePass, LLC and ATS Processing Services, LLC to process and bill to your credit card or billing account for the above-mentioned charges.” The renter is notified of the charges several weeks after the rental is concluded and Dollar (through its agent) explains that the “administration fee was charged to cover the cost of processing your citation on behalf of the Rental Car Company.” 4. But Dollar’s self-described administration fees were anything but. In truth, despite representing these fees for a particular purpose-ETC administration-Dollar failed to use these fees for that purpose and instead retained the vast majorityof these fees for itself. In this manner, Dollar’s administration fees were in excess of the amounts that it actually paid to third parties. 5. Presented with Dollar’s representations about the purpose of the $15 per toll fee, Plaintiff and other class members reasonably expected that that these were charges necessary for the administration of Dollar’s ETC program and thus parted with money that they reasonably thought Dollar would use for that purpose. But instead, Dollar secretly and largely retained this money. 6. So for instance, if a Dollar customer traveled on the Florida Turnpike and incurred four $2 tolls to and from this renter’s destination, this renter’s total charge would be 2 5055721 ER 80 Case 1:15-cv-22959-JEA $68: $8 in tolls and $60 in purported administration fees. Had this same situation occurred before November 201 1, this renter’s total charge would have been $108, with $100 in purported administration fees 7. The fees are not for the stated purpose and are instead Dollar’s way to enhance revenues by making its customers believe that these charges are required when they aren’t. 8. Compared to other national car companies, Dollar charges its customers fees that are at least three (and sometimes up to twenty-six) times higher. But unlike other major car- rental companies, Dollar imposes its $15 fee on a “per toll" basis, while other companies charge a daily administration fee, As the following graph illustrates, a consumer who incurs even one toll in a Dollar rental car will pay nearly four times what this renter would pay if renting a competitor’s car. And ifthis renter incurs two tolls in the same day (for example driving roundtrip on a toll road), Dollar’s administration fee is 75 times the competition’s administration fee: ocument 1 Entered on FLSD Doc ,, , 08/06/2015 Page 3 of 21 Exhibit "1 1" ONE DAY RENTAL/ADMINISTRATIVE FEES (all are maximum fees per day; except Dollar/Thrifty which is per toll) Alamo Avis Budget Dollar/Th rifty ~ l Admi istrative Fee for Two Enterprise Tolls One Day Hertz I Admi istrative Fee for One Toll/ ne Day National $0 $5 $10 $15 $20 $25 $30 $35 Source: www,sungasscom/rentalcar. 505572 1 ER 81 Case 1:15-cv-22959-JEM ocument l Entered on FLSD Docl 8/06/2015 Page 4 of 21 Exhibit "11" 9. Furthermore, every other national car-rental company has a maximum amount of administration fees it charges for a customer‘s rental period of between $16.95 and $19.75. with Hertz (Dollar’s parent company) providing a maximum cap of $24.95 for all tolls incurred in a rental month. But as a “customer courtesy," Dollar agrees not to charge more than seven administration fees during a rental period or no more than $105.2 But this is over five times the competition’s charges and over four times Dollar’s own parent’s charges. And Dollar imposes all of these charges even though it uses the same providers as the other rental companies to administer its ETC collection: Total ETC Administrative Fees per Customer Rental Period Alamo "a: ',~ Avis Budget Dollar/Thrifty - -P_ v .3” i ’ ,izl‘ 3; Enterprise Hertz * l 1 $0 $10 $20 $30 $40 $50 $60 $70 $80 $90 $100 $110 National Source: www.5ungass.com/rentalcar. 10. Not only are Dollar’s “costs” far in excess of any other national rental company (including Dollar‘s parent), but documents obtained from Florida Department of Transportation’s Florida’s Turnpike Enterprise (“FTE”) show the negligible amounts that the 2 Because Dollar charges “per toll," ifa customer incurs 7 or more [oils in one day, Dollar would charge this customer $105. making Dollar‘s administration charges 26.5 times its competition’s per-day rate. 4 505572 1 ER 82 Case 1:15-cv-22959-JEM , ocument 1 Entered on FLSD Dock,, ,8/06/2015 Page 5 of 21 Exhibit "11" agency charges for electronic tolls. Under contracts between Dollar’s ETC service providers, Rent A Toll, Ltd. (“RTL”) and American Traffic Solutions, Inc. (“ATS”), the FTE charges these service providers only $0.06 per toll incurred and charges these service providers 8% of the gross monthly tolls incurred. Thus, for example, assuming Dollar rented 1,000 cars in a month and each car incurred 4 toll charges at $1.00 per toll, the administration cost would be $560.3 But Dollar would collect $60,000 from its customers at $15 per toll multiplied by 4,000 tolls meaning that its cost to ‘administer’ the program is 107 times the charges imposed by the FTE. 11. Dollar’s representation, through its standardized documents, of $15 and $25 per toll administration fees to customers who traveled through electronic toll plazas but who did not purchase toll Bypass options is untrue and is a means to increase Dollar’s profits while misleading its customers concerning the true purpose of these charges. 12. Accordingly, Plaintiff brings this action for breach of contract, violation of Florida consumer-protection law, and breach of the covenant of good faith and fair dealing in order to recover his and class members’ damages and to obtain injunctive relief. 13. This Court has subject matterjurisdiction under 28 U.S.C. § 1332(d). The amount in controversy exceeds $5,000,000, exclusive of interest and costs, and this is a class action where Plaintiff and class members are citizens of states different from Dollar. [4. This Court has personal jurisdiction over Dollar because it conducts substantial business in Florida. 15. Venue is proper in this District under 28 U.S.C. § 1391 because Dollar does 3 $0.06 per toll x 4,000 tolls/month = $240; 8% of $4000/gross toll amount = $320. Total: $320 + $240= $560. 5 505572 1 ER 83 Case 1:15-cv-22959-JEM ocument 1 Entered on FLSD Doclfl )8/06/2015 Page 6 of 21 Exhibit "11" business in this District, resides in this District, conducts substantial business in this District, and a substantial part of the events giving rise to Plaintiff’s claims occurred in or emanated from this District. 16. Plaintiff, Marshall Maor, is a New York resident who rented a Dollar car in Florida and paid administration fees to Dollar. l7, Defendant Dollar Thrifiy Automotive Group, Inc. (d/b/a/ Dollar Rent A Car) is a corporation organized and existing under Delaware law, has its principal place of business in Tulsa, Oklahoma, and conducts extensive business throughout Florida, including in this District. Dollar has 32 car rental locations in Florida, with its highest number of locations effectuating the scheme described in this Complaint located in this District. 18. Defendant Dollar Rent A Car, Inc. is a wholly owned subsidiary of Dollar Thrifiy Automotive Group, Inc., is an Oklahoma corporation, and conducts extensive business throughout Florida, including in this District. 19. Defendant DTG Operations, Inc. is a wholly owned subsidiary of Dollar Thrifty Automotive Group, Inc., is an Oklahoma corporation, and conducts extensive business all over Florida, including in this District. A. The ETC industry 20. ETC began in 1993 with the implementation of E-ZPass issued by New York State, which allowed motorists to bypass cash-toll lanes with a transponder and a registered account to debit the toll. ETC lanes improve speed and efficiency of traffic flow, save time, reduce congestion and pollution, and increase fuel economy. ETC also results in reduced 6 5055721 ER 84 Case 1:15-cv-22959-JEM ocument 1 Entered on FLSD Docl 8/06/2015 Page 7 of 21 Exhibit "11" accident rates and improved safety because slow-and-go-traflic is reduced. 21. In the mid-19905, ETC came to the forefront in toll collection with New York’s adoption of the E-ZPass transponder system. This system allowed customers with an account (usually established by registering a credit card and a license-plate number) to obtain a transponder that signaled a receiver when their vehicle passed through a toll lane. The toll amount was then debited from customers’ accounts. The toll was collected without the need to slow down and physically exchange cash, and traffic congestion was further reduced. 22. According to a 2007 study conducted by the Center for Transportation Research, entitled T all Collection Technology and Best Practices (“ETC Study”), ETC is the preferred mechanism for toll collection. ETC lanes improve traffic flow, save drivers time, reduce congestion and pollution, and improve fuel economy. In addition, because fewer people are needed to operate an ETC system, overall costs per transaction are substantially lower. For example, the Oklahoma Turnpike, one of the first US. highways to use high-speed toll plazas, has seen a 90 percent reduction in collection costs on ETC lanes. 23. Given its overall benefits, ETC continues to expand. Many toll roads, bridges, and tunnels include ETC lanes. And with the advancement of ETC technology, many roadways have eliminated cash tolls altogether and now use ETC as their exclusive toll-collection method. According to the ETC Study, the ETC market is expected to experience double-digit growth from 2006-2016. 24. As a result of these benefits, in 1996, the US. Department of Transportation sought to implement ETC systems in the 75 largest metropolitan areas within 10 years. According to the USDOT, as of 2004, 62 of the United States’ largest metropolitan areas had met this goal. 505572.] ER 85 Case 1:15-cv-22959-JEM ocument 1 Entered on FLSD Doclm J8I06/2015 Page 8 of 21 Exhibit "11" B. Private firms’ involvement in ETC 25. In 2006, three private companies-Highway Toll Administration, ATS, and RTL-began developing strategies to capitalize on ETC. 26. RTL is a private company that provides ETC services. RTL promotes the use of its services as a revenue generator for its corporate clients, noting on its website under FAQ’s that, “Rent A Toll electronic toll payment solutions provide many benefits for fleet managers, car rental companies and tell authorities, including: [g]eneration of incremental revenues.” 27. Beginning in or before 2008, Dollar became RTL’s major national rental-car- company customer. 28. Dollar’s e-toll service electronically identifies Dollar vehicles as they travel through ETC sites. This is accomplished by various means depending on the vehicle’s location. 29. Some transactions are captured and processed by recognizing license-plate numbers, others are captured through an electronic transponder device in the vehicle. Once the identification is made, the e-toll service receives data identifying the Dollar vehicle and the tolls incurred on specific dates. Dollar permits the company with whom it has partnered to equip Dollar’s rental cars with ETC transponders (first, RTL, and since Dollar’s acquisition by Hertz, ATS) containing its customers’ personal identification and payment information, including their credit-card and debit-card information and the vehicles they rented. 30. Dollar offers a toll Bypass option payment service where Dollar pays renters’ tolls but charges renters a flat daily fee of between $8 and $21 per day (depending on the market) for the entire rental period, regardless of use. So if a customer rents a Dollar car for 10 days but travels on an ETC road only once, the overall cost to the customer of Dollar’s service is an additional $80 to $210 (day rate x full rental period), even if the customer only incurred one 8 5055721 ER 86 Case 1:15-cv-22959-JEM _ ocument 1 Entered on FLSD Docl.-. J8/06I2015 Page 9 of 21 Exhibit "11" $2.00 toll on one day. 31. In or about November 2012, Hertz Global Holdings, Inc., the parent company of Hertz Rent a Car, acquired Dollar. Although Dollar operates as a separate entity from Hertz, sometime afier that acquisition, Dollar switched its ETC contractor from RTL to ATS, the company that administers Hertz’s ETC program. The misconduct that Plaintiff alleges in this Complaint remained the same throughout the time that Dollar contracted with RTL for its Pass24 service and with ATS for its PlatePassT service. 32. The following map depicts the states where RTL presently offers ETC services (and Plaintiff believes that Dollar’s ETC service area was the same or substantially the same during the period that RTL was Dollar’s ETC provider): 505572.l ER 87 Case 1:15-cv-22959-JEM vcument 1 Entered on FLSD Dock 8/06/2015 Page 10 of 21 Exhibit "11" Rent: Moll" @mmhmzs Map uhmnmu-I-u-n- mun-.qn-u-n-n-u In 33. Considering Dollar’s ETC service provider change from RTL to ATS, Plaintiff believes Dollar’s ETC is now applied to the following service area: 10 505572.l ER 88 Case 1:15-cv-22959-JEM tcument 1 Entered on FLSD Dock 8/06/2015 Page 11 of 21 Exhibit "11" Click on an area of the map to see the ATS products it use. 34. Although Dollar’s ETC vendor changed from RTL to ATS, Dollar’s contract terms have not changed. Thus, regardless of Dollar’s ETC vendor, at all times material hereto during which Dollar offered ETC service, Dollar misrepresented to its renters that its $15 or $25 per toll was a fee for administering Dollar’s ETC program when only a very small fraction of this charge actually went toward administering Dollar’s ETC program. Instead, the vast majority of this charge was a hidden fee to consumers, disguised as a legitimate fee for administering Dollar’s ETC program. 11 505572 1 ER 89 Case 1:15-cv-22959-JEM cument 1 Entered on FLSD Dockr,, ,8/06/2015 Page 12 of 21 Exhibit "11" C. The magnitude of Dollar ’3 administration fees and their lack of relationship to Dollar’s actual ETC costs 35. According to the Florida Turnpike Authority, ATS and RTL entered into “Marketing and Operations Agreement(s) for Rental Car Toll Collection Services” with F lorida’s Turnpike Enterprise (FTE) as service providers for national rental-car companies. including Dollar. 36. Under this agreement’s terms, FTE charges service providers a video-toll- processing fee of $0.06 for each video or image-based transaction paid from each service provider’s prepaid account.4 37. Every month, FTE also charges each service provider’s prepaid account an administration maintenance fee of 8% of the monthly gross amount of all tolls paid. So assuming Dollar rented 1,000 cars in a month and each car incurred 4 toll charges at $1.00 per toll, the video-toll-processing fee would be $560.5 But Dollar would presently collect $60, 000 from its customers ($15 x 4,000 tolls), an additional $59,440.00 or 107 times more than what the FTE charges, demonstrating that Dollar’s administration fee is not a pass-through charge (like legitimate port charges or sales tax) for the purpose of administering its ETC program but is rather a means for increasing Dollar’s profits while misleading its customers concerning this charge’s appropriateness. 38. Given the ETC program’s low cost, it is not surprising that every other competitor (including Dollar’s parent company, Hera) charges only a fraction of Dollar’s purported 4 Under the contract, each service provider is required to maintain a prepaid toll account with a required minimum account balance of 50% of the monthly average over the last six months of toll usage, adjusted quarterly. Like consumers with ETC accounts, the prepaid account is only drawn on to pay the tolls. 5 See infia n.3. 12 50557211 ER 90 Case 1:15-cv-22959-JEM )cument 1 Entered on FLSD Dock,, ,8/06/2015 Page 13 of 21 Exhibit "11" administration fee'3 for the same service (often with the same service provider). As the following table shows, Dollar’s charge per toll is over three times the per-day toll charge of every other car-rental company.7 ~ $3.95 per usage day that customer incurs HTA tolls ‘ _ ($19.75 maxrmum fee per rental period) $3.95 char e er da e-Toll ($16.95 mgxirgium p)er rental month) $3.95 char e er da C'TO“ ($16.95 magxirgtum pyer rental month) $15 per occurrence ATS (Maxrmum charge of $105 per rental period) $3.95 per usage day that customer incurs HTA tolls _ ($19.75 maXImum fee per rental period) $4.95 char e er da ATS ($24.95 magxilgtum tier rental month) D. Dollar’s imposition of false and excessive administration charges on I’laim‘iflr and class members 39. Dollar has over 570 rental locations in 61 countries, including approximately 260 locations in the US. and Canada. Dollar has 32 car rental locations in Florida, with its highest number of locations effectuating the scheme described in this Complaint located in this District. 40. Dollar’s car-rental customers execute uniform, standardized rental contracts that set out the rental agreements terms, charges. and conditions. Whether a customer’s rental is achieved through Dollar’s website, over the phone, or by other means, Dollar’s uniform, 6 In fact, given the overall cost of the ETC programs, it would appear that every company might be overcharging its customers for administering its ETC program. 7 This chart was compiled from data presented at https://Www.sunpass.com/rentalcar. 505572.1 ER 91 Case 1:15-cv-22959-JEM rcument 1 Entered on FLSD Dock,, ,8/06/2015 Page 14 of 21 Exhibit "11" standardized rental contract explains that if renters “choose not to select the PlatePassT pre-paid tolling option and travel on one of these all-electronic toll roads, and do not have [their] own tolling device in the vehicle, the applicable toll will be paid for [them] and an administration fee of $15.00 [formerly $25] per occurrence with a maximum of $105.00 will be charged.” But Dollar’s representation that its $15 or $25 per toll charge is an administration fee is fraudulent, unfair, and deceptive. 41. Dollar’s representation is also in breach of Dollar’s contracts with customers because despite Dollar’s description of this fee as intended to cover the administrative cost of Dollar’s ETC program, the vast majority of Dollar’s charge is not used for that purpose but is rather an undisclosed profit center that has no bearing on the administrative cost of Dollar’s ETC program. In this manner. Dollar’s representation that it is charging customers an administration fee is a breach of customers’ rental contracts. 42. In truth, most of the money that Dollar collects from customers as supposed administration fees is simply increased rental revenue. 43. By representing that its $15 or $25 per toll charge is an administration fee, when the administration cost of Dollar’s ETC program is not nearly that high, Dollar breached its contracts with its customers, defrauded them, and breached the covenant of good faith and fair dealing that it owes to its customers. 44. On or about July 20, 2014, Marshall Maor reserved a rental vehicle from Dollar for pick-up in Florida. 45. On July 20, 2014, Maor arrived in Florida. Before leaving the airport, he visited the Dollar office to execute his rental contract. Maor was presented with and signed Dollar’s 14 5055721 ER 92 Case 1:15-cv-22959-JEM icument 1 Entered on FLSD Dock 8/06/2015 Page 15 of 21 Exhibit "1 1" uniform, standardized rental agreement. He then picked up his rental car, left the airport, and drove on Florida highways during which he passed through fully electronic toll booths. 46. On July 29, 2014, Maor returned his rental car to Dollar’s rental location, as required by the contract he executed. 47. Shortly afier returning home, he received a notice from Dollar Processing Center entitled “Dollar Rent A Car Toll Charge Notice.” The notice indicated that on July 21, 2014, his rental car incurred a toll charge of $ 1 .37 on the Central Florida Expressway. The notice instructed that the toll charge was subject to Dollar’s “administration fee” of $15.00, for a total charge of $16.37, and described Dollar’s administration fee as follows: Per your rental contract with Dollar Rent A Car, you are responsible for all fines, penalties, and processing fees related to any and all tolls and violations. The toll amount plus a $15 administrative fee per toll has been assessed. As a customer courtesy, your rental agreement will only incur a maximum of seven administrative fees. (Emphasis in original) 48. When Dollar demands payment, it accompanies that demand with a one-page document entitled “FAQ-Frequently Asked Questions. The first question is “Why was I charged an administration fee?” The answer given is: Per your rental agreement, an administration fee was charged to cover the costs of processing your citation on behalf of the Rental Car Company. Processing included either transferring liability of the citation out of the Rental Car Company’s name into your name or paying the citation. The Issuing Authority generally dictates whether a payment or a Transfer of Liability is allowed for a particular citation. The benefit to you for transferring liability is that you retain due process and can contest your ticket with the Issuing Authority if you so choose. (Emphasis added). 49. Thus. for a toll of $1 .37, Plaintiff owed Dollar an extra $15.00-over 10 times the amount of the toll~-for his toll’s “administration,” even though the cost imposed by the FTE was only a fraction of Maor’s $1.37 toll. 15 505572.] ER 93 Case 1:15-cv-22959-JEM )cument 1 Entered on FLSD Dock,, ,8/06/2015 Page 16 of 21 Exhibit "11" 50. On or about August 22, 2014, Plaintiff paid these charges via his credit card. LA TI ALLEG TI NS 51. Plaintiff brings this action as a class action under Federal Rules of Civil Procedure 23(b)(2) and (b)(3) on behalf of himself and the following class: All Dollar customers who rented (or will rent) Dollar vehicles for pick up in Florida and who paid (or will pay) Dollar’s $15 or $25 per toll administration fee commencing January 1, 2008. Excluded from Plaintiff 5 class are (a) Dollar and any entity in which Dollar has a controlling interest; (b) Dollar’s employees, officers, directors, agents, representatives, and their family members; (c) class counsel, employees of class counsels’ firms, and class counsels’ immediate family members; and (d) the presidingjudge, magistratejudge, theirjudicial staff and any of their immediate family members. 52. Plaintiff paid Dollar’s $15 per toll administration fee in connection with his vehicle rental, meaning he is a class member. 53. Plaintifi‘ can identify and ascertain all other class members from Dollar’s records. These records are computerized and are largely generated by online rentals. These records reflect which customers were charged Dollar’s toll administration fee. Thus, Plaintiff's class is ascertainable. 54. Plaintiff does not know the exact size of the class because this information is in Dollar’s exclusive control. But based on the nature of the commerce involved, Plaintiff believes the class members number in the thousands and that class members are dispersed throughout the U.S., including Florida. Therefore,joinder of all class members would be impracticable. 55. Plaintifi’s claims are typical of other class members” claims because Plaintiff and all class members paid Dollar’s $15 or $25 per toll administration fees. 56. Common legal or factual questions predominate within the class, including but not limited to: 1 6 5055721 ER 94 Case 1:15-cv-22959-JEM icument 1 Entered on FLSD Dock__ _8I06/2015 Page 17 of 21 Exhibit "11" Whether Dollar’s identical misstatement, misrepresentation, omission, or misconduct in its uniform, standardized contract with Plaintiff and class members concerning its $15 or $25 administration fees breached its contracts with Plaintiff and class members; Whether Dollar’s misrepresentation concerning its administration fees violated Florida’s consumer protection laws; Whether Dollar’s misrepresentation concerning its administration fees breached the duty of good faith and fair dealing that Dollar owed Plaintiff and class members; Whether Dollar’s conduct injured Plaintiff and class members; Whether as a result of Dollar’s wrongdoing, Plaintifi’ and class members sustained damages and the proper amount of these damages; and Whether Dollar should be subject to an injunction for the protection of Plaintiff and class members. 57. Plaintifi‘ will fairly and adequately represent and protect class members’ interests, and he has no interests that conflict with or are antagonistic to class members’ interests. Moreover, Plaintiffs attorneys are experienced and competent in complex class action litigation. 58. Class certification is the superior procedural method for fairly and efficiently adjudicating Plaintiff’s claims because: 505572.1 a. Common questions of law or fact predominate over any individual questions that exist within the class; Each class member’s damage claim is too small to make individual litigation an economically viable possibility, and few class members likely have any interest in individually controlling the prosecution of separate actions; Class treatment is required for optimal deterrence and compensation and for determining any court awarded reasonable legal fees and expenses; Despite the relatively small size of each class member’s claim, the aggregate volume of class members’ claims-coupled with the economies of scale inherent in litigating similar claims on a common basis-will enable class counsel to litigate this case on a cost-effective basis; and Plaintiff anticipates no unusual difficulties in this class action’s 17 ER 95 Case 1:15-cv-22959-JEM cument 1 Entered on FLSD Dock-_ -8/06/2015 Page 18 of 21 Exhibit "11" management because all legal and factual questions are common to the class. 59. Class certification is appropriate under Federal Rule 23(b)(2) because Dollar has acted on grounds generally applicable to Plaintiff and the class members, all of whom are at imminent risk of irreparable harm by Dollar having charged, and continuing to charge, its illegal administration fee and all of whom are entitled, as a result, to an injunction preventing Dollar from continuing this behavior, as well as a declaration that establishes class members’ rights and Dollar’s duties with respect to Dollar’s administration fee. COUNT ! Breach of Contract Under Florida Law 60. Plaintiff realleges the preceding paragraphs as if fully set forth in this Count. 61. By Plaintiff renting a vehicle from Dollar (i.e., tendering payment in exchange for a vehicle), Plaintiff contracted with Dollar. 62. Dollar’s contract with Plaintiff was standardized, and Dollar used this contract (or a substantially similar version, either noting a $15 administration fee or a $25 administration fee) with all class members. 63. Dollar’s contract promised that its administration fee would be used “to cover the costs of processing [Plaintiff’s] citation[s]” but that is not how Dollar used this fee. Rather, Dollar used this fee to secretly profit by charging Plaintiff multiples of Dollar’s actual administrative fee to process his toll, instead of earmarking this fee for ETC administration, as Dollar’s contract promised. By falsely describing the nature of this charge and by charging Plaintiff in the manner described herein, Dollar breached its contract with Plaintiff. 64. As a result of Dollar’s breach, Plaintiff paid more to Dollar than he should have paid for his administrative fee. In this manner, Dollar’s breach of contract proximately caused 18 505572.] ER 96 Case 1:15~cv-22959-JEM icument 1 Entered on FLSD Dock 8/06/2015 Page 19 of 21 Exhibit "11" Plaintiff’s actual damages. mum Violation of the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.201 et seq. 65. Plaintiff realleges the preceding paragraphs as if fully set forth in this Count. 66. Dollar’s vehicle rental to Plaintiff constituted trade or commerce under Fla. Stat. § 501.203(8). 67. By misrepresenting the true nature and purpose of its administration fees (i.e., by falsely claiming that Dollar’s $15 per toll charges were for administering its ETC program and were for the purpose of “cover[ing] the costs of processing [customers’] citation[s] on behalf of the Rental Car Company” when they were not), Dollar committed an unconscionable act or practice or deceptive act or unfair practice in the conduct of trade or commerce under Fla. Stat. § 501.204, which unconscionable act or practice or deceptive act or unfair practice in the conduct of trade or commerce would likely have deceived a reasonable person under the same circumstances as Plaintiff. 68. Dollar’s deception misled Plaintiff and other reasonable consumers to their detriment. 69. As a result of Dollar’s unconscionable act or practice or Dollar’s deceptive act or unfair practice in the conduct of trade or commerce-which unconscionable act or practice or deceptive act or unfair practice in the conduct of trade or commerce was substantial, was not outweighed by any countervailing benefits to consumers, and injured Plaintiff and consumers in a manner that they could not reasonably avoid-Plaintiff paid more to Dollar than he should have paid for his administration fee. In this manner, Dollar’s unconscionable act or practice or deceptive act or unfair practice in the conduct of trade or commerce proximately caused 19 5055721 ER 97 Case 1:15-cv-22959-JEM ucument 1 Entered on FLSD Dock 8/06/2015 Page 20 of 21 Exhibit "11" Plaintiff’s actual damages. COUNT III Breach of the Implied Covenant of Good Faith and Fair Dealing Under Florida Law 70. Plaintiff realleges the preceding paragraphs as if fully set forth in this Count. 71. The contract formed between Dollar and Plaintiff was subject to an implied covenant that Dollar would conduct its business with Plaintiff in good faith and would fairly deal with him. 72. Dollar breached this implied covenant by charging Plaintiff administration fees that were not “charged to cover the costs of processing [his] citation[s] on behalf of the Rental Car Company,” thus misrepresenting these administration fees’ true purpose. 73. Plaintiff has been damaged as a direct and proximate result of Dollar’s breach of its implied covenant of good faith and fair dealing. On behalf of himself and the class, Plaintiff requests the following relief: At An order certifying this action as a class action, appointing Plaintiff as class representative, and appointing his attorneys as class counsel; B. Under Count I, an order awarding damages related to Dollar’s breach of contract; C. Under Count 11, an order awarding damages, attorneys’ fees, and costs under Fla. Stat. § 501.2105 and Fla. Stat. § 501.211, as well as injunctive and declaratory relief under Fla. Stat. § 501.211; D. Under Count [11, an order awarding damages related to Dollar’s breach of the implied covenant of good faith and fair dealing. B. Any other relief that this Court deems appropriate and just under the circumstances. 20 505572.l ER 98 Case 1:15-cv-22959-JEM 505572 1 )cument 1 Entered on FLSD Dock,, ,8/06/2015 Page 21 of 21 Exhibit "11" JURY TRIAL DEMAND Plaintiff hereby demands trial byjury of all issues triable in this case. Dated: August 6, 2015 Respectfully submitted, s/Tod Aranovitz Tod Aronovitz ARON OVITZ LAW One Biscayne Tower, Suite 2630 2 South Biscayne Blvd. Miami, FL 33131 Tel: (305) 372-2772 Fax: (305) 397-1886 E-mail: ta@aronovitzlaw.com J efi‘rey W. Lawrence THE LAWRENCE LAW FIRM 101 California Street, Suite 2710 San Francisco, CA 94104 Tel: (415) 504-1601 Fax: (415) 504-1605 E-mail: jeffreyl@jlawemcelaw.com Bruce D. Greenberg Jeffrey A. Shooman LITE DEPALMA GREENBERG, LLC 570 Broad Street, Suite 1201 Newark, NJ 07102 Tel: (973) 623-3000 Fax: (973) 623-0858 E-mail: bgreenberg@litedepalma.com jshooman@litedepalma.com Daniel R. Karon Beau D. Hollowell KARON LLC 700 W. St. Clair Ave., Suite 200 Cleveland, OH 44113 Tel: (216) 622-1851 Fax: (216) 241-8175 E-mail: dkaron@karonllc.com bhollowe]l@karonllc.com Attorneys for Plaintiff and the Class 21 ER 99
