1 MITCHELL REED SUSSMAN SUPERIOR COURT OF CAILFORNIA ...

[Pages:19]Electronically Filed by Superior Court of California, County of Orange, 01/27/2020 01:02:00 PM. 30-2019-01082041-CU-FR-CJC - ROA # 55 - DAVID H. YAMASAKI, Clerk of the Court By Mark Gutierrez, Deputy Clerk.

1 MITCHELL REED SUSSMAN #75107

2 1053 S. Palm Canyon Dr. Palm Springs, Ca. 92264

3 Phone (760) 325 - 7191

4

5

Attorney for Plaintiffs

6

7

SUPERIOR COURT OF CAILFORNIA

8

COUNTY OF ORANGE, CENTRAL BRANCH

9

10 Woodward Drake, Joann Drake,

) No.30-2019-01082041-CU-FR-CJC )

11

vs.

12

Plaintiffs,

) ) )

SECOND AMENDED COMPLAINT FOR DAMAGES

) (1)FRAUD

13

Wyndham Resort Development Corporation, Wyndham Worldwide

) (2)INTENTIONAL CONCEALMENT ) (3)DECLARATORY RELIEF

14

Operations, Inc., DOES 1 - 10, inclusive;

) (4)BREACH OF FIDUCIARY DUTY -

) )

NEGLIGENCE

15

)

Defendants. )

16

)

)

17

)

)

18

Plaintiffs complain and allege as follows:

19

GENERAL ALLEGATIONS

20

1. Wyndham Resort Development Corporation (hereinafter "WRD") is

21

an Oregon corporation maintaining its corporate office at 8427

22

Southpark Circle, Orlando, Florida doing business within this

23

judicial district.

24

2. Wyndham Worldwide Operations, Inc. ( hereinafter "WWO"), is a

25

Delaware corporation maintaining its worldwide corporate office at

26

8427 Southpark Circle, Orlando, Florida doing business within this

27

28 -1-

SECOND AMENDED COMPLAINT

1 judicial district.

2

3. At all relevant times WWO is the umbrella company under which

3 WRD operates. Moreover the actions, conduct, representations and

4 contracts of WRD were done with the knowledge consent and approval

5 of WWO, which plaintiffs are informed and believed ratified said

6 actions, conduct, representations and contracts. (Collectively

7 hereinafter WRD and WWO are referred to hereinafter as "Wyndham.")

8

4. According to its website, Wyndham, is the world's largest

9 hospitality company which offers across six continents a broad

10 array of hospitality products, services and accommodations.

11

5. Wyndham further claims to be the largest developer and

12 marketer of vacation ownership programs (hereinafter "time ?

13 share") having developed or acquired more than 160 vacation

14 ownership resorts throughout the United States, Canada, Mexico,

15 the Caribbean and the South Pacific that represent approximately

16 20,500 individual vacation ownership units

17

6. At all relevant times Wyndham is a time ? share regulated by

18 the Act, doing business in the state of California and within the

19 juridical district with had no less than ten (10) time ? share

20 locations in the state of California. Of the defendant locations

21 within the state of California including within this judicial

22 district in Anaheim, Irvine and Oceanside to name a few.

23

7. Wyndham markets and sells vacation ownership programs and

24 provides consumer financing throughout the state of California and

25 within the jurisdiction of this court through two primary consumer

26 brands Club Wyndham and WorldMark by Wyndham.

27

8. Club Wyndham operates a multisite time-share plan in which

28 -2-

SECOND AMENDED COMPLAINT

1 the purchaser of "specific time ? share interests" ( as more fully

2 defined in California Business and Professions Code 11212

3 (z)(2)(A)), is deeded a fractional interest, as a tenant in

4 common, of a specific piece of real estate with the right to use

5 accommodations at that specific time-share property, together with

6 use rights in accommodations at one or more other component sites

7 created by or acquired through the time-share plan's reservations

8 system.

9

9. WorldMark by Wyndham operates a multisite time-share plan in

10 which the purchaser of a "nonspecific time-share interest," ( as

11 more fully defined in California Business and Professions Code

12 11212 (z)(2)(B)), which is the right to use accommodations at more

13 than one component site created by or acquired through the time-

14 share plan's reservation system, but including no specific right

15 to use any particular accommodations.

16

10.

At all relevant times Wyndham, as the world's largest

17 time ? share company, has adopted uniform and standardized

18 practices, procedures, representations and contracts in connection

19 with its time ? share business ( hereinafter "transactions").

20 These transactions are the basis for this action. Moreover there

21 are common issues of fact and law common to all Wyndham time-share

22 sales presentations and contracts, including the sales

23 presentations and contracts that are the subject of this action.

24

11.

Defendants utilize standard form agreements in

25 connection with the transactions that are the subject of this

26 action.

27

12.

One of these standardized agreements is referred to by

28 -3-

SECOND AMENDED COMPLAINT

1 Wyndham as a "Retail Installment Contract Vacation Owner

2 Agreement." (hereinafter "Purchase Agreement")

3

13.

At the same time that a purchaser enters into the

4 Purchase Agreement, Wyndham insists that the purchaser assign the

5 time-share interest's use rights into a trust in exchange for

6 "points" redeemable at other locations. The standardized agreement

7 by which the purchaser assigns his/her interest in the time-share

8 to the was known initially as the "Fairshare Vacation Ownership

9 Assignment Agreement and use Restriction," later to be known as

10 the "TravelShare Member Agreement." (hereinafter "Assignment")

11

14.

Plaintiffs, Woodward Drake and Joann Drake (hereinafter

12 "Drake") are California residents who purchased from defendant a

13 non ? specific time ? share interest from defendant, to wit, a

14 WorldMark time ? share while visiting defendants' time ? share

15 property in Angels Camp, California.

16

15.

Plaintiffs are currently the owners of the time - share

17 interest referenced in the preceding paragraph.

18

16.

The true names and capacities of defendants sued herein

19 as DOES 1 - 10, inclusive, whether individual, corporate,

20 partnership, associate or otherwise, are unknown to plaintiffs

21 and, as such, are sued by fictitious names pursuant to Section 474

22 of the California Code of Civil Procedure. Plaintiffs are informed

23 and believes that such fictitiously named defendants are

24 responsible in some manner for the damages hereinafter alleged.

25 Plaintiffs will seek leave of court to amend this complaint to

26 include their true names and capacities when ascertained.

27

17.

At all relevant times Wyndham operated in the state of

28 -4-

SECOND AMENDED COMPLAINT

1 California as vacation ownership program regulated by the Vacation

2 Ownership and Time ? Share Act of 2004 ( hereinafter "Act")

3 insofar as they offer for lease or sale one of more of the

4 following products: (a) Time-share plans with at least one

5 accommodation or component site in California; (b) Time-share

6 plans without an accommodation or component site in California, if

7 those time-share plans are sold or offered to be sold to any

8 individual located within California; (c) an "exchange program" as

9 more fully defined by Business & Profession Code 11212(l).

10

11

FIRST CAUSE OF ACTION

12

( Against All Defendants )

13

( FRAUD )

14

18.

Plaintiffs hereby refer to and incorporate by reference

15 paragraphs 1 - 17, inclusive, as though the same was more fully

16 set forth at this point.

17

19.

On September 21, 2015, at Angels Camp, Ca1ifornia, the

18 plaintiffs agreed to and did so enter into a series of contracts

19 with defendants, WRD, including but not limited to the Purchase

20 Agreement and Assignment.

21

20.

In making the sale of the time ? share interests to

22 plaintiffs defendants, and each of them, were acting by and

23 through their agent and sales person Amber Chisum who at the time

24 was a licensed real estate broker authorized by defendants to act

25 as an employee on their behalf.

26

21.

At no time were the plaintiffs asked if they wished to

27 have their own real estate broker or attorney review any of the

28 -5-

SECOND AMENDED COMPLAINT

1 time ? share contracts.

2

22.

At all relevant times Amber Chisolm was acting as a dual

3 agent with a fiduciary duty to explain to the plaintiffs the terms

4 and meaning of the time ? share contracts and that the failure to

5 so inform plaintiffs would amount to constructive fraud.

6

23.

in their desire to sell time - share interests to the

7 plaintiffs and to in order to induce the plaintiff to enter into

8 the time - share contracts alleged herein above, intentionally,

9 falsely and fraudulently made the following false statements of

10 fact:

11

a. That the time ? share interest purchased by the plaintiffs

12

would appreciate and increase resale price and value over time.

13

b. That the time ? share interest purchased by the plaintiffs

14

could be freely exchanged, transferred and sold.

15

c. That the time ? share interest purchased by the plaintiffs

16

would receive booking exclusivity over non ? purchasing

17

vacationers wishing to stay at one or more of the Worldmark

18

properties owned and/or maintained by the defendant.

19

d. That the time ? share interest purchased by the plaintiffs

20

would grant plaintiffs access to one or more of the properties

21

owner and/or maintained by the defendant, and that said

22

properties would be widely available.

23

24.

Plaintiffs are informed and believe and thereon allege,

24 that the foregoing representations have been adopted as standard

25 practice and procedure by Wyndham throughout the entirety of its

26 160 vacation ownership resorts in the United States, Canada,

27 Mexico, the Caribbean and the South Pacific.

28 -6-

SECOND AMENDED COMPLAINT

1

25.

The foregoing representations were made to plaintiffs

2 Drake on or about September 21, 2015 at Angels Camp, California by

3 Amber Chisum who was at all times acting within the course and

4 scope of her employment with the defendants and with their

5 knowledge and consent.

6

26.

The true facts were that (a) the time ? share interest

7 purchased by the plaintiffs did not appreciate and increase resale

8 price and value over time; (b) the time ? share interest purchased

9 by the plaintiffs could not be freely exchanged, transferred and

10 sold; (c) the plaintiffs did not receive booking exclusivity of

11 non ? purchasing vacationers wishing to stay at one or more of the

12 Worldmark properties owned and/or maintained by the defendant; (d)

13 the time-share properties owned and/or maintained by the defendant

14 were not made widely available to the plaintiffs.

15

27.

When defendants made these representations they knew

16 them to be false, and these representations were made by

17 defendants with the intent to defraud and deceive the plaintiffs,

18 with the intent to induce the plaintiffs to act in the manner

19 herein alleged and enter into the time ? share contract.

20

28.

Plaintiffs were unaware of the falsity of these

21 representations at the time the representations were made by

22 defendants, and each of them, and did not discover the falsity of

23 these representation until October of 2018 when they attempted to

24 reserve a time-share unit at one of defendants' properties in

25 Monterey, California and were unable to do so in spite of the fact

26 that rooms at the property were still being sold to the general

27 public who had no ownership interest in defendant's time ? share.

28 -7-

SECOND AMENDED COMPLAINT

1 Prior to their discovery of defendants' fraud, the plaintiffs were

2 diligent in attempting to book vacations and were able to do so.

3 In fact, the reason the plaintiffs did not discover the truth of

4 defendants' misrepresentations was because plaintiffs didn't have

5 many problems with booking other resorts such as Angles Camp, CA.,

6 and San Francisco, CA. However, when plaintiffs tried to book the

7 resort (Marina Dunes) in Monterey in 2018 they were told it was

8 booked for a year out and not only booked by members but was also

9 to people who weren't even times-share owners with Wyndham. That

10 is when they began to get suspicious. The tried to book that same

11 resort again and again and were told each time that it was fully

12 booked by both Wyndham members and the general public and that had

13 to wait at least a year to get the date they wanted.

14

29.

At the time plaintiffs took the actions herein alleged,

15 they were ignorant of the falsity of defendants' representations

16 and believed them to be true and reasonably relied on said

17 representations because defendants held themselves out as a

18 reputable company duly licensed by the state of California and

19 with years of experience in the time ? share industry.

20

30.

In addition, at all relevant times, plaintiffs

21 reasonably relied on the representations of Amber Chisolm, acting

22 as a licensed real estate agent acting as the sole and only real

23 estate agent involved the transaction who was duty bound to act

24 with the utmost good faith for the benefit of the plaintiffs

25 including but not limited to the duty to disclose all information

26 relevant to the plaintiffs' decision, investigate, disclose and

27 explain to plaintiffs the nature of the agreements that plaintiffs

28 -8-

SECOND AMENDED COMPLAINT

 ................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download