NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
PETER STROJNIK, Plaintiff/Appellant,
v.
BEST WESTERN INTERNATIONAL INC, Defendant/Appellee.
No. 1 CA-CV 22-0036
FILED 10-13-2022
Appeal from the Superior Court in Maricopa County
No. CV2021-050758
The Honorable Sara J. Agne, Judge
AFFIRMED
COUNSEL
Peter Strojnik, Phoenix
Plaintiff/Appellant
Ogletree Deakins Nash Smoak & Stewart PC, Phoenix
By Caroline K. Larsen
Counsel for Defendant/Appellee
STROJNIK v. BEST WESTERN
Decision of the Court
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the court, in which
Presiding Judge David D. Weinzweig and Judge D. Steven Williams joined.
H O W E, Judge:
¶1 Peter Strojnik appeals the trial court’s granting Best Western
International Inc.’s dba Best Western Hotels and Resorts (“BWI”) motion to
dismiss for failure to state a claim and denying his request for leave to
amend his complaint. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 After perusing multiple BWI booking websites in Arizona
and visiting several locations in California, Strojnik filed a complaint
against BWI. He alleged consumer fraud—brand deceit, civil conspiracy,
civil aiding and abetting, and disability law violation, which he later
voluntarily dismissed. He described that he is in poor health and examined
the websites “to determine whether they provided sufficient accessibility
information” before his stay. He also described that BWI franchises its
brand name to third-party hotels and alleged that each BWI location he
visited in California was inaccessible.
¶3 Under the Arizona Consumer Fraud Act (“ACFA”), he
alleged that hotels “have developed a system of deceptive
self-identification through the purchase and use of nationally recognizable
brand names such as ‘Best Western’ to hide the true ownership and
operational management of the hotel or motel.” He added that BWI
“misidentifies itself . . . through its booking website” and that guests are
really booking rooms with an “Unknown Hotelier” that fail to disclose
non-accessible features. He alleged that he justifiably relied on “BWI’s
compliance with, belief in, and endeavor to comply with disability laws”
on his visits and was injured as a result.
¶4 Under civil conspiracy, he alleged that in contracting with
“Unknown Hoteliers,” BWI “falsely market[ed] their lodging as a ‘Best
Western’ in order to mislead the public.” He alleged that he relied on its
“good name, reputation, and policies,” but that the “Unknown Hoteliers”
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STROJNIK v. BEST WESTERN
Decision of the Court
using the BWI name have “no reputation and no policy of compliance with
disability laws.” On his third claim, he alleged that “BWI aided and abetted
Unknown Hoteliers” in violating consumer protection laws by providing
the Best Western sign on their buildings, not disclosing “the true ownership
and operators” on its website, and failing to “disclose accessibility facilities”
on its website. He alleged that BWI created a “substantial risk of significant
harm” to him and that he “suffered an injury.” He sought “injunctive relief,
equitable nominal damages in the amount of no less than $1.00, actual
nominal damages in the amount of no less than $1.00, [and] punitive
damages as applicable in the amount no less than $1.00.”
¶5 BWI moved to dismiss for failure to state a claim under
Arizona Rule of Civil Procedure (“Rule”) 12(b)(6), arguing that Strojnik
failed to properly allege an injury for all his claims or illegality of conduct
on the part of BWI. It argued that BWI’s website, including booking pages
for its third-party hotels, stated that “[e]ach Best Western branded hotel is
independently owned and operated.” In opposing the motion, Strojnik
requested leave to amend his complaint.
¶6 The court granted BWI’s motion and dismissed Strojnik’s
other claims with prejudice, relying on the statement on BWI’s website. The
court found that BWI did not make misrepresentations and that “even the
least sophisticated reader” would not believe that “third party member
hotels’ services, standards and core principles would be anything but their
own.” It further found that his civil conspiracy and aiding and abetting
claims also fail “[w]ithout an unlawful act at the gravamen of his claims.”
The court also denied his request for leave to amend because granting it
would be “futile.” Strojnik timely appealed.
DISCUSSION
¶7 Strojnik argues that the trial court erred in dismissing his
claims and denying his motion for leave to amend the complaint. We
review the dismissal of a complaint under Rule 12(b)(6) de novo. Fappani v.
Bratton, 243 Ariz. 306, 309 ¶ 8 (App. 2017). We review the denial of a request
to amend for an abuse of discretion. First-Citizens Bank & Trust Co. v. Morari,
242 Ariz. 562, 567 ¶ 12 (App. 2017).
I. BWI’s Motion to Dismiss
¶8 The court did not err in granting BWI’s motion to dismiss. To
state a claim under the ACFA, Strojnik must sufficiently allege that BWI’s
franchise agreement with third-party hotels was fraudulent, and that the
agreement injured him. See Cheatham v. ADT Corp., 161 F. Supp. 3d 815,
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STROJNIK v. BEST WESTERN
Decision of the Court
825–26 (D. Ariz. 2016) (stating that the ACFA “broadly prohibits fraudulent,
deceptive, or misleading conduct in connection with the sale or
advertisement of consumer goods and services”). He did not do so. Rather,
he made conclusory statements that BWI tried to hide the “true ownership
and operational management” of the hotels to which it licenses its brand,
that he justifiably relied on BWI’s representation that it complies with
disability laws, and that he was injured from his reliance. See Steinberger v.
McVey ex rel. Cnty. of Maricopa, 234 Ariz. 125, 141–42 ¶¶ 74–75 (App. 2014)
(stating that consumer fraud claims must include “detailed supporting
allegations,” including specifically identifying the actors involved and their
alleged misconduct). But we “do not accept as true allegations consisting of
conclusions of law, inferences or deductions that are not necessarily
implied by well-pleaded facts, unreasonable inferences or unsupported
conclusions from such facts, or legal conclusions alleged as facts.” Swift
Trans. Co. of Ariz. L.L.C. v. Ariz. Dep’t of Revenue, 249 Ariz. 382, 385 ¶ 14
(App. 2020). Strojnik also failed to plead any cognizable injury.
¶9 Without more, Strojnik’s conclusory allegations are not
enough to survive a motion to dismiss under Rule 12(b)(6). Cf. Cheatham,
161 F. Supp. 3d at 831 (holding that plaintiff sufficiently established
damages in alleging that “she would not have purchased her wireless
security system but for ADT LLC’s violation of the ACFA” and continued
to suffer economic loss); Lorona v. Ariz. Summit Law Sch., 188 F. Supp. 3d
927, 935–37 (D. Ariz. 2016) (holding that plaintiff’s complaint sufficiently
alleged that she relied on law school’s misrepresentation of graduation
statistics and was damaged through unemployability).
¶10 To properly plead a claim for civil conspiracy and civil aiding
and abetting, Strojnik had to prove an underlying tort as an essential
element. See Caruthers v. Underhill, 230 Ariz. 513, 526 ¶ 54 (App. 2012). He
did not do so. He merely alleged that in contracting with third-party hotels,
BWI “falsely market[ed] their lodging as a ‘Best Western’ in order to
mislead the public” and did not disclose “the true ownership and
operators” or accessible facilities on its website. These claims are similarly
conclusory and based on his ACFA claim, which we found deficient. See
supra ¶¶ 8–9. Therefore, the court did not err.
II. Strojnik’s Request to Amend
¶11 The court did not err in denying Strojnik’s request to amend
the complaint. Generally, leave to amend is “freely given when justice
requires.” ELM Ret. Ctr., LP v. Callaway, 226 Ariz. 287, 292 ¶ 25 (App. 2010).
However, the court may deny a request upon finding “undue delay, bad
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STROJNIK v. BEST WESTERN
Decision of the Court
faith, dilatory motive, [and] repeated failure to cure deficiencies by
previous amendments or undue prejudice to the opposing party,” Carranza
v. Madrigal, 237 Ariz. 512, 515 ¶ 13 (2015) (internal quotation marks
omitted), or “if the amendment would be futile,” ELM Ret. Ctr., LP, 226
Ariz. at 292 ¶ 26. A futile amendment is one that does not present new
theories of recovery or allege additional facts to properly plead a claim. Id.
Here, the record presents Strojnik’s history of filing lawsuits that were
similarly dismissed under Rule 12(b)(6), thereby demonstrating his failure
to cure past pleading deficiencies. See, e.g., Strojnik v. Kashyap Hotels, LLC,
No. 1 CA-CV 21-0043, 2021 WL 5183626, *3 ¶ 18 (Ariz. App. Nov. 9, 2021)
(unpublished) (affirming superior court’s denial of his motion to amend for
his history of filing deficient complaints); Strojnik v. FlagExpress, LLC, No. 1
CA-CV 21-0074, 2021 WL 5183632, *4 ¶ 20 (Ariz. App. Nov. 9, 2021)
(unpublished) (affirming same); Strojnik v. State ex. rel. Brnovich, No. 1
CA-CV 20-0423, 2021 WL 3051887, *3–4 ¶¶ 18–19 (Ariz. App. July 20, 2021)
(unpublished) (affirming superior court’s grant of a Rule 12(b)(6) motion to
dismiss and denial of his request to amend based on untimely notice of
claim). Allowing him the opportunity to amend his complaint now would
be futile. Therefore, the court did not err.
CONCLUSION
¶12 For the reasons stated, we affirm. BWI requests its costs and
attorneys’ fees under ARCAP 21 and A.R.S. § 12–349 because Strojnik’s
claims are “without merit” and “frivolous.” Strojnik appealed without
substantial justification. See A.R.S. § 12–349(A)(1). Accordingly, we award
BWI its reasonable attorneys’ fees and costs upon compliance with ARCAP
21.
AMY M. WOOD • Clerk of the Court
FILED: AA
5