In our last article we told you about the tragic case of David Goldner, an L.A. artist whose life’s work was irretrievably auctioned off by the treasure-hunting pirates at Public Storage. Here’s a class-action lawsuit that has been filed on behalf of all Californians who have been defrauded or otherwise abused by the Poblic Storage crinimals:
Tag Archives: Public Storage sucks
Class Action Lawsuit Launched Against Public Storage for “False Advertising” and Violations of California Consumer Laws
There are thousands of stories about how Public Storage or one of the other greedy REIT’s that run the US’ public storage facilities have ruined people’s lives. But this story is truly heart-breaking. David Goldner, an artist from Los Angeles, CA had his entire life’s work wiped out by the scum at Public Storage because he was a month and a half late on his rent! More than 40 years of work was auctioned off because he was behind on his rent – and now Public Storage refuses to let him know who bought his storage space so he can negotiate its safe return!
Capitalism, at best, is nothing but a trap for the vast majority of the working class who are forced to live under an economic system in which the basic necessities of life – food, clothing, shelter, education and medical care – are considered to be “privileges” granted – or not – by the wealthy capitalists who own the nation’s residential and commercial properties and who own the legislatures of the capitalist world.
Mr. Goldner’s story is republished here from his blog at http://www.laartsdistrictblogs.com/. He also has a Facebook page here: https://www.facebook.com/PublicStorageSleazyThieves
His story is yet another reason why we say: PUBLIC STORAGE SUCKS!
—– Public Storage Sucks
REBUTAL LETTER TO DEPARTMENT OF CONSUMER & BUSINESS AFFAIRS
AFTER PUBLIC STORAGE BLATANTLY LIES TO COVER YET ANOTHER ILLEGAL AUCTION
Mr. Anthony Wai
Los Angeles County Consumer & Business Affairs
500 W. Temple St, Room B-96
Los Angeles, CA 90012-2706
Thank you for giving me the opportunity to rebut this non sequitur self serving excuse from Public Storage. After reading their letter, I realized we were dealing with yet another sub-manager within Public Storage who I personally have never heard of before, nor have I ever had contact with him at Public Storage; yet he is claiming he’s telling you facts about me that are blatantly false, and he apparently knows absolutely nothing about the actual facts of the situation, or more likely, considering how blatantly wrong his so called facts actually are, is just shamelessly lying to you as he attempts to wordsmith Public Storage’s statement in an attempt to cover up their illegal and blatantly predatory policies and illegal business practices. Once again, this is what I have come to expect from Public Storage and just goes to show their lack of integrity and ethics, and shows the total contempt all the faceless employees at Public Storage seem to show for their customers.
First off, I’ve been a Photographer / Artist since I was in Jr. High. I was forced to put my entire live /work studio in storage after a VC group defaulted on a contract to fund an Art Based reality show I have created, and have a cable commitment to air. I had given up the lease on my smaller studio and had a lease in my hand for a bigger place to shoot the series. But at the last minute, when the VC group didn’t come up with the funding, and I had given up my old lease, I had to put my entire studio (A live/work studio) in storage while I looked elsewhere for the funding to do the show. The VC guys left me in a bad spot and I’ve been struggling everyday since to get back on my feet. Just a few months before, I had been back in school for almost two years, learning to do photo realistic 3D to blend with my multimedia artwork. And I had built a big computer to do 3D that cost a fortune as well. (This was also in storage at PS) And I did that all on my own dime, so I was very low on personal funds at that point. But I had several big projects I was pushing after school was over and the reality show is the one that everyone loved.
I picked public storage because they had a $1 dollar for the first month move in and I just assumed because they were in the arts district it would be a safe place to store in. I took the biggest space they had. 40 plus years of my life was in there. Little did I know Public Storage would be the predators I would have to deal with. And Dale Washington had a few things to say about their fuzzy math on that first month one dollar special as well. So apparently, I started getting screwed by Public Storage from moment one!
At the time of the illegal auctioning of all my belongings on March 17th, I had no working phone, and I had no current living address, and the District Manager, Margaret Sommers, the one and only person that had contacted me via email was the only person I was dealing with. And that contact was all via email. Margaret Sommers very well knew I didn’t have a working phone because I told her that via email in December 14th- 15th 2014 and can be verified in the email logs I have sent you. Margaret Sommers was also informed that the address Public Storage was mailing auction notices to, was an old address I had moved out of. I told them that fact the day I signed up and moved in as well!
Margaret Sommers was told the address was wrong in December 2014, because she actually asked me if it was correct. And again, I informed her at that time, via email in December 2014, it was not a correct address and was in fact my old address I moved out of. I requested all auction notices be emailed to me. And I told Margaret Sommers that I had no current mailing address or phone number. She knew my situation. So why did she blatantly ignore those facts in March??? Alzheimer’s ? A head injury? Because it was convenient? Or because they have no ethics? I say the ladder is true.
Margaret Sommers had contacted me via email to “REMIND” me they were auctioning off my belongings on December 18th 2014. I was literally 18 days late at that point. But her email just days before was the first notice I had gotten about any auction. And considering all the back rent had been paid, I assumed she was just mistaken. But she was dead serious. I kid you not, sir. I owed for that month alone. 18 days at that auction point!! And they actually did auction off my unit on December 18th, 2014. This is a great example of exactly what their predatory self serving fuzzy math is allowing them to do! Eighteen days late and they thought it was okay to auction all my belongings? I’ll be damned if this isn’t wrong on so many levels! They literally put me through a mental hell with that first auction alone!
Then after the auction, Margaret Sommers told me that the auction was on contingency and they decided they would give me until the end of the month to pay. How magnanimous of them, huh? That’s when I started to castigate her and Public Storage for doing what they did! They put me through a mental hell! Had I had the means to do so, I would have taken my belongings out right then! But I was not in a financial position to do so.
So to easily disprove a few points Phillip Cannon is falsely asserting, let’s start with the first time Public Storage actually auctioned off my unit in December, shall we? As I mentioned, I had paid all my past due, but they still acted like they had the right to ignore that fact because I had paid the past due after the first, rather than the day before, on the 30th. This is how they are getting away with destroying people’s lives! They have literally made up their own non sequitur fuzzy math and say their contract makes it legal. This is a despicable, shameless and totally predatory business practice and needs to be called out by the FTC for being blatantly unethical!
Phillip Cannon asserts that Public Storage was left with no “choice” but to auction off all my belongings on March 17th 2015. Really? Well first off, please ask Phillip to explain what Public Storage’s motivation was on the first auction on December, 18th, when all the past due had been paid? Did they have no “choice” but to auction my unit at that time as well? Saying they had no choice is just pure bullshit! They do have a choice. They do this because they think they can get away with it. They do this because the FTC and local prosecutors are letting them get away with it. They do this because they claim according to their contract, they can, and because they want to! Not because they are compelled to!!! There was absolutely nothing compelling them to auction my belongings except their own predatory business practices and their blatant corporate greed.
Again, Phillip Cannon stated as fact in his Public Storages letter to you that I owed 3 months rent at the time of the auction. This is just another blatant lie! A fictional tale Public Storage is spinning for you to try and justify this illegal auction. I was a month and a half over due at the time of the auction. And in the same sentence Phillip is telling you I owed 3 months rent, he shows you a figure that represents the two months rent I actually owed. Phillip Cannon has tried to make it sound like I had not made a payment since 2014, saying I haven’t had a zero balance since December. Trying to make it sound like I had not paid in more than 3 months and I had abandoned my property and they just had no choice. But he fails to mention, and the payment records will clearly show, that a payment was made just 35 days before that auction. These people are just despicable and have literally tried to justify what they have done to me with blatant lies to you and your agency.
Phillip Cannon also asserts that they contacted me via phone multiple times and I made multiple promises to them to pay. Really? At what phone number? Again, referring back to my emails to Margaret Sommers in December 2014, (14th-15th); I informed her at that time that I did not currently have a phone. And I did not get a phone until after that March auction. And that was a free phone service I had to apply for. So how could Public Storage have called me and gotten promises from me when I had no phone for them to call in that time period? Maybe they can explain that to you? This was blatantly made up by Public Storage! Total fiction, again to help support their story that I was somehow notified about the auction! Absolutely not true! A totally fabricated mendacity! I got an email on Sunday, March the 15th again, “REMINDING” me they were auctioning off my unit on Tuesday the 17th if I couldn’t pay by Monday the 16th. That email just days before was my first and only notice about the March 17th auction. So Phillip Cannon’s assertion that I had ample notice, is just absolutely untrue and just more pure bullshit from Public Storage! I found out on the 15th that they were going to auction my belongings on the 17th. That is not ample notice!
Margaret Sommers very well knew the address Public Storage was mailing auction notices to for that March auction, was not a valid address for me because I had informed her of that in an email MONTHS before in December. But apparently, she just didn’t care and then just kept sending them to the same old address as if that was okay. Does the FTC think that’s okay? And when she contacted me about the march auction, she never once mention the mailed notices when I protested her two day email notice because she knew we had discussed that months earlier. She knew very well Public Storage was sending notices to a invalid address but ignored that fact.
Margaret Sommers could have emailed me the auction notice as I requested in the December email, but she didn’t. Her two day email “REMINDER” was fine with her, but apparently emailing me the actual auction notices when it first went out was too difficult? She is a district manager and she had an obligation to make sure she was doing everything properly. But she blatantly, willfully and I think spitefully didn’t. I was struggling and she knew that and I think took advantage of that fact. And I truly believe it was my reaction to that ridiculous first auction she is spiteful about. She didn’t like being castigated by me for what she and Public Storage had unjustly put me through with their “Mock Auction” in December, so she got even with the next auction. I think it was malicious and purposeful and blatantly illegal. And as Phillip Cannon mentioned, they have a “choice”. And they choose to not care about their customers or the facts, and just do the wrong thing for their convenience and their own personal gain or ego without any conscience about what they do to innocent people.
40 years of my copyrighted Photography and art work is gone! Stolen by Public Storage! These corporate thieves have destroyed my life and my career. Ten’s of thousands of negatives, transparencies and my own custom prints are just gone. All my tear sheets of ads, magazine covers, everything I’ve ever accomplished as a photographer is gone because of pure corporate greed! I have nothing physical to show for 40 years of being an artist! They have wiped it out! Dozens of my paintings from the 80’s to now are gone. All my studio, darkroom, lighting equipment, three computers, my scanner, my printer, my entire business is just gone. All my cameras. All my portfolios of all my work is gone!! My power tools, my telescopes, my camping equipment. Not to mention everything personal that I had left from my family and childhood. I struggled for 40 plus years for everything I had! And they wiped it out like it was nothing! Because it’s nothing to them! I was a month and a half late! That’s all!! And they won’t even tell me who bought my unit so I can try to get my copyrighted work back! Public Storage is despicable and reprehensible and a totally self serving conglomerate of conscienceless corporate thieves!
This 550 million dollar a year company has destroyed my life and they want to claim it was just something they had to do? That they just had no choice? What total bullshit! There was absolutely nothing compelling them to rape my entire life away except their own predatory policies of pure corporate greed. As Phillip Cannon made clear, they do have a choice. But they seem to always choose to do the wrong thing and then try to bury the actual facts with lies, double talk and their own non sequitur fuzzy math that the FTC needs to stop.
This just can’t be happening to people and it’s happening all over. The FTC needs to act now! My case is far from being an anomaly. I may be louder then some, but I am far from alone . This is Public Storage’s reputation all over the internet. So many people Public Storage has hurt have contacted me since my web site about them went up. Their predatory business practices need to be stopped immediately. The FTC needs to take action before this happens to someone else. And I guarantee you it will be happening to someone else tomorrow unless you help stop it today!
We are proud to announce our new Twitter account! Now folks all across the USA and the world can instantly Tweet how much they hate Public Storage!
You can find us on Twitter here:
Or Tweet to us at @PubStorgeSucks !
The photos on our Twitter account’s header show the Public Storage facility in Morton Grove, Illinois. The nighttime shot shows the non-existent “security lighting” featured at this dump, with a car driving through the broken “security gate” left open for weeks at a time when it breaks – at least 3 times a year!
Here are some more shots of this same scene:
The smaller photo shows how the employees at Public Storage in Morton Grove shoveled the entrances to the storage lockers last winter. This particular entrance was left like this for WEEKS! People had to walk sideways to get to the door – carrying items in and out was impossible.
More reasons why we say: PUBLIC STORAGE SUCKS!
We promised you we’d scour the Internet for first-person accounts of Public Storage’s suckery – and we’re going to hold up our end of that bargain!
It turns out that Public Storage’s strategy of legally stealing people’s stuff isn’t just happening in Illinois – it’s happening all over the US – and it’s been going on for a long time:
Any direction of regulations or codes that anyone believes would be relevant would be great. Oh and they were also charging me a $30.00 late fee but legally at most they can only charge $15.00 civil code 21713.5
I asked about going to the auction to try to buy it back, since no one in their right mind would have offered more than $100 for it. They told me I wouldn’t be allowed to bid.
After calling the attorney general’s office about this – they changed their story to there being a minimum bid of the amount owed. They told me a couple of other things about the auction process that will have me talking to the AG again, but I don’t want to let the cat out of the bag here.
Well, that’s my story. Maybe I’m being whiny, and for the most part they have the legal right to do so. But they seem to be willing to completely screw me at a more human level, even if it means costing them hundreds of dollars in lost rent, auction costs, and finally disposing of the crap that no one is going to buy.
Do you want to do business with a company with that attitude?
PS – (After a week of unbelievable stress and anguish, I found someone willing to help me with the money. Now I have all the photo albums and other stuff with personal meaning – but they still have a unit full of crap to sit unrented until it goes to auction. I’m damn sure not just giving them the keys back after this.)
This is the location on Oxnard and Sepulveda. Their staff is HORRIBLE.
Now, I’m legally going after them. I do believe I have a case.
This is self storage, not Ft Knox. Lock it up.
Be considerate of the manager. If they live on site, that is their private residence. Don’t beat on their door at 10 at night wanting them to open the gate for you.The dollar for the first month is not a lie. You were charged 1 dollar for the rent and a 19 dollar one time administrative fee. This was explained to you.
If you think you have felt frustration, imagine calling 7 pages of deliquent customers to try to get them to pay their bill before late charges acrue or stepping in human waste because people do their business on the ground and leave bottles of urine all over the place for me to clean up.
-Insurance is required. People get mad at us if something were to happen, and blame us if their insurance is canceled. If you go 45 days late, your insurance cancels. You will have to reinstate it, on top of everything else. We can’t force you to get it, but if you decline it, its totally on you if there is a fire or break in.
-It’s also in the agreement that we can ask for a key if there is maintenance that needs to be done on a unit. It is not personal, and no one wants to go through your stuff. Are you going to scream and holler and threaten to call the media if your apartment complex needs to get into your place to do some work?
-You were told how much the rent is after your pro rate. Just because you were charged something cheap for your second month doesn’t mean that is the rate. It was explained to you. Its the dollar/admin fee/ lock and insurance for the first month, and a pro rated amount for the second, with a full payment due your third month.
-It is also explained that we do not give refunds. The only way you would get a refund would be if you paid for say 6 months, but moved out after 3. You will not be refunded the current month, but will be refunded any months after the current one. The only way to have a discount in the month that you vacate is to let us know when you make that month’s payment the date you intend to leave.
-Your rent is due on the first. It doesn’t matter when you moved in. That’s how you get the pro rate for the second month.
I can’t believe some of the garbage I’ve read in some of these reviews. Public storage is not out to screw anyone. All you have to do is pay attention when the agreement is explained, and ask questions if you have any.
September 26, 2006
|THEO HILL, Plaintiff-Appellee,
PS ILLINOIS TRUST,
|Appeal from the
Circuit Court of
PRESIDING JUSTICE WOLFSON delivered the opinion of the court:
The storage facility sold off plaintiff’s property because his rent payments were overdue. That sale gives rise to the plaintiff’s constitutional and statutory claims we address in this appeal.
Plaintiff Theo Hill filed a class action lawsuit against defendant PS Illinois Trust (PS), alleging the Illinois Self-Storage Facility Act (Storage Act) (770 ILCS 95/1 et. seq. (West 2004)) violated the due process clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 2). Plaintiff also alleged on his own behalf that PS’s actions in conducting a lien sale under the Storage Act were “unfair and deceptive” under the Illinois Consumer Fraud and Deceptive Business Practices Act (CFA) (815 ILCS 505/2 (West 2004)).
PS moved to dismiss plaintiff’s case pursuant to section 2-615 of the Illinois Code of Civil Procedure (Code) (735 ILCS 2-615 (West 2004)). The trial court granted PS’s motion.
On appeal, plaintiff contends the trial court erred when it determined he failed to allege the requisite state action necessary to support a claim under the Illinois due process clause, and that he failed to state a claim under the CFA. We affirm in part and reverse and remand in part.
The pleadings reveal the facts relevant to this appeal. On August 5, 2003, defendant entered into a contract with PS for the rental of a storage locker in order to store his personal property. Plaintiff made his monthly payments for August and September. On October 17, 2003, plaintiff called PS’s storage facility to inform it that he would be late with October’s rent payment, but would make the payment later in the week. Plaintiff was told his account was past due, but was not told his property would be auctioned off if payment was not made.
Plaintiff was unable to make the October and November rental payments. On December 5, 2003, plaintiff called PS to check the balance on his account and arrange payment. Plaintiff was told his belongings were auctioned off on November 25, 2003. Plaintiff’s personal property was worth in excess of $25,000. According to plaintiff, he never received notice that PS would be auctioning off his property in order to enforce a lien created under section 3 of the Storage Act. 770 ILCS 95/3 (West 2004).
On January 26, 2005, plaintiff called PS to demand the return of any balance remaining from the lien sale, as required by section 4(j) of the Storage Act. 770 ILCS 95/4(j) (West 2004). A representative of PS told plaintiff “I have no idea what you are talking about.” On February 9, 2005, plaintiff faxed PS a letter demanding the return of any balance remaining. PS never responded to the letter.
Plaintiff filed a two-count complaint against PS in the circuit court of Cook County. In Count I, plaintiff sought, on behalf of himself and a putative class of PS customers, a declaratory judgment that the Storage Act was unconstitutional “on its face and as applied” because it failed to provide adequate notice. In Count II, plaintiff alleged on his own behalf that PS, in violation of the CFA, engaged in unfair and deceptive conduct when it sold his property.
PS moved to dismiss the complaint pursuant to section 2-615 of the Code. PS contended: (1) plaintiff failed to allege the requisite state action necessary to support a claim under the due process clause of the Illinois State Constitution; and (2) plaintiff failed to allege any facts that would constitute an unfair act in violation of the CFA. The trial court dismissed Count I and gave plaintiff time to amend his claim under the CFA. Defendant then filed a motion to amend his complaint. The trial court denied plaintiff’s motion to amend and dismissed the case with prejudice. Plaintiff appealed the dismissal of the CFA and declaratory judgment claims, but did not appeal from the trial court’s refusal to allow him to amend his complaint, nor did he appeal dismissal of his conversion claim.
A section 2-615 motion to dismiss challenges only the legal sufficiency of the complaint. 735 ILCS 5/2-615 (West 2004); Jarvis v. South Oak Dodge, Inc., 201 Ill. 2d 81, 85, 773 N.E.2d 641 (2002). The central inquiry is whether the allegations of the complaint, when considered in the light most favorable to the plaintiff, are sufficient to state a cause of action relief may be granted on. Jarvis, 201 Ill. 2d at 86; Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 490, 675, N.E.2d 584 (1996). We review de novo the dismissal of a complaint under section 2-615 of the Code. Jarvis, 201 Ill. 2d at 86.
I. Due Process
Plaintiff contends the trial court erred when it determined he failed to allege the requisite state action necessary to support a claim under the Illinois due process clause.
Initially, we note plaintiff has not indicated he complied with Supreme Court Rule 19 (134 Ill. 2d R. 19), which requires a litigant challenging the constitutionality of a statute, ordinance, or administrative regulation to serve notice of the challenge upon the Attorney General or other affected agency or officer. While we recognize the failure of a litigant to strictly comply with the rule may result in forfeiture, our Supreme Court has concluded that “a party’s failure to comply with Rule 19 does not deprive the court of jurisdiction to consider the constitutional issue.” Village of Lake Villa v. Stokovich, 211 Ill. 2d 106, 119, 810 N.E.2d 13 (2004); Serafin v. Seith, 284 Ill. App. 3d 577, 672 N.E.2d 302 (1996) (“[m]oreover, even if the issue were not waived, we believe that [plaintiff’s] constitutional arguments are without merit.”) We will decide the issue, although its ripeness for consideration is dubious.
To assert a violation of the Illinois due process clause, a plaintiff must allege a state action deprived him of a protected right, privilege, or immunity. In re Adoption of L.T.M., 214 Ill. 2d 60, 73, 824 N.E.2d 221 (2005); USA I Lehndroff Vermoegensverwaltung GmbH & Cie v. Cousins Club, Inc., 64 Ill. 2d 11, 15-16, 348 N.E.2d 831 (1976). The Illinois due process clause stands “as a prohibition against governmental action, not action by private individuals.” Methodist Medical Center of Illinois v. Taylor, 104 Ill. App. 3d 713, 717, 489 N.E.2d 351 (1986).
Plaintiff contends state action was properly alleged in this case because the State of Illinois “authorized” PS, under section 4 of the Act, to violate his constitutional rights by selling his property without due process. See 770 ILCS 95/4 (West 2004). Plaintiff contends there are three distinct tests for determining whether there is state action. See Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 621-22, 111 S. Ct. 2077, 2083, 114 L.Ed.2d 660, 674 (1991). Plaintiff contends the third test, the “state authorization model,” applies in this case because the Storage Act specifically authorized PS to conduct the lien sale.
In response, PS contends plaintiff’s failure to attribute state action to PS’s decision to sell his goods is fatal to his due process claim. Defendant contends section 4 of the Act permitted, but did not compel, PS to sell plaintiff’s belongings. See 770 ILCS 95/3 (West 2004). PS contends merely permitting a private actor to make such a choice cannot support a finding of state action.
When appropriate, the Illinois Supreme Court has interpreted our state due process clause to provide greater protections than its federal counterpart. Lewis E. v. Spagnolo, 186 Ill. 2d 198, 227, 710 N.E.2d 798 (1999) “Nonetheless, federal precedent interpreting the federal due process clause is useful as a guide in interpreting the Illinois provision.” Spagnolo, 186 Ill. 2d at 227.
To support his contention, plaintiff relies on three United States Supreme Court decisions: Edmonson, 500 U.S. 614, 111 S. Ct. 2077, 114 L.Ed.2d 2077; Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L.Ed. 1161 (1948); and Reitman v. Mulkey, 387 U.S. 369, 87 S. Ct. 1627, 18 L.Ed.2d 830 (1967).
In Edmonson, the Court noted that “in determining whether a particular action or course of conduct is governmental in character, it is relevant to examine the following: the extent to which the actor relies on governmental assistance and benefits; whether the actor is performing a traditional governmental function; and whether the injury caused is aggravated in a unique way by the incidents of governmental authority.” (Citations Omitted.) Edmonson, 500 U.S. at 621-22, 111 S. Ct. at 2083, 114 L.Ed.2d at 674. However, the Court also noted that “[a]lthough private use of state-sanctioned private remedies or procedures does not rise, by itself, to the level of state action, our cases have found state action when private parties make extensive use of state procedures with ‘overt, significant assistance of state officials.’ ” (Citations omitted.) Edmonson, 500 U.S. at 622, 111 S. Ct. at 2083, 114 L.Ed.2d at 674.
In Shelly, the Court concluded restrictive racial covenant agreements, standing alone, could not be regarded as a violation of any rights guaranteed by the Fourteenth Amendment. “So long as the purposes of those agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been no action by the State.” Shelly, 334 U.S. at 13, 68 S. Ct. at 842, 92 L.Ed. at 1180. When the restrictive terms and purposes of the agreements were judicially enforced in state courts, however, sufficient state action was present to bring them under the purview of the Fourteenth Amendment. Shelly, 334 U.S. at 13-15, 68 S. Ct. at 842, 92 L.Ed. at 1180.
Finally, in Reitman, the U.S. Supreme Court held a California statute not only repealed an existing law forbidding private racial discriminations, but “was intended to authorize, and does authorize, racial discrimination in the housing market.” The California Supreme Court held the statute would significantly encourage and involve the State in private discrimination. After analyzing the decision, the Court found it had not been presented with any persuasive considerations indicating the California judgment should be overturned. Reitman, 387 U.S. at 381, 87 S. Ct. at 838, 18 L.Ed.2d at 1634.
By contrast, in Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 151, 98 S. Ct. 1729, 1731, 56 L.Ed.2d 185, 190 (1978), a case similar to the instant action, the Court considered whether a warehouseman’s proposed sale of goods entrusted to him for storage in order to collect overdue storage fees, as permitted by a New York statute, was an action properly attributable to the State of New York. Plaintiff initiated a class action in federal district court under section 1983 of the United States Code (42 U.S.C. § 1983), seeking damages, an injunction against the threatened sale of her belongings, and a declaration that such a sale pursuant to the New York statute would violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment. In order to establish a section 1983 claim, plaintiff was required to show: (1) she was deprived of a right “secured by the Constitution and the laws of the United States;” and (2) Flagg Brothers deprived her of this right acting “under color of any statute of the State of New York.” 436 U.S. at 155, 98 S. Ct. at 1733, 56 L.Ed.2d at 192.
The Court held the New York statute had done nothing more than “authorize (and indeed limit)–without participation by any public official–what Flagg Brothers would tend to do, even in the absence of such authorization, i.e., dispose of respondents’ property in order to free up its valuable storage space.” The proposed sale pursuant to the lien was not a significant departure from traditional private arrangements. Flagg Brothers, 436 U.S. at 163, 98 S. Ct. at 1737, 56 L.Ed.2d at 197. The “total absence of overt official involvement” distinguished the case from earlier decisions imposing procedural restrictions on creditors’ remedies. Flagg Brothers, 436 U.S. at 157, 98 S. Ct. at 1734, 56 L.Ed.2d at 194.
Notwithstanding, the plaintiffs contended Flagg Brothers’ proposed action under the statute was properly attributable to the State because “the State has authorized and encouraged it” by enacting the statute. Flagg Brothers, 436 U.S. at 164, 98 S. Ct. at 1737, 56 L.Ed.2d at 198. Rejecting the plaintiffs’ contention, the Court held its cases reflect that a State is responsible for the act of a private party only ” ‘when the State, by its law, has compelled the act.’ ” Flagg Brothers, 436 U.S. at 164, 98 S. Ct. at 1737, 56 L.Ed.2d at 198, quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 170, 90 S. Ct. 1598, 1615, 26 L.Ed.2d 142, 161-62 (1970). The Court noted it had “never held that a State’s mere acquiescence in a private action converts that action into that of the State.” Flagg Brothers, 436 U.S. at 164, 98 S. Ct. at 1737, 56 L.Ed.2d at 198. Flagg Brothers’ actions pursuant to the statute, without something more, were not sufficient to justify characterizing Flagg Brothers as a state actor. The Court did not directly or indirectly limit its decision to section 1983 cases.
Plaintiff contends Flagg Brothers is inapplicable here because the plaintiff in that case sought to hold individuals personally liable under section 1983 of the United States Code, rather than simply seeking to declare the New York statute unconstitutional. Plaintiff contends the issue of whether a defendant is a state actor is not relevant in an action seeking only to declare a state statute unconstitutional.
Contrary to plaintiff’s contention, however, the United States Supreme Court has noted: “In cases under § 1983, ‘under color’ of law has consistently been treated as the same thing as the ‘state action’ required under the Fourteenth Amendment.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 928, 102 S. Ct 2744, 2749, 73 L.Ed.2d 482, 489 (1982), quoting United States v. Price, 383 U.S. 787, 794, n. 7, 86 S. Ct. 1152, 1157, 16 L.Ed.2d 267, 272 (1966).
For example, in American Manufacturers Mutual Insurance Co. v. Sullivan, 526 U.S. 40, 50, 119 S. Ct. 977, 985, 143 L.Ed.2d 130, 143 (1990), the plaintiffs, hoping to avoid the traditional application of the Court’s section 1983 state-action cases, characterized their claim as a “facial” or “direct” challenge to the procedures contained in the statute. The plaintiffs contended the Court need not concern itself with the “identity of the defendant” or the “act or decision by a private actor or entity who is relying on the challenged law.” Sullivan, 526 U.S. at 50, 119 S. Ct. at 985, 143 L.Ed.2d at 143. The Court held the argument ignored its repeated insistence that state action requires:
“both an alleged constitutional deprivation ’caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible,’ and that ‘the party charged with the deprivation must be a person who may fairly be said to be a state actor.’ ” (Emphasis in original.) Sullivan, 526 U.S. at 50, 119 S. Ct. at 985, 143 L.Ed.2d at 143, quoting Lugar, 457 U.S. at 937, 102 S. Ct. at 2753, 73 L.Ed.2d at 495.
The Court noted that in cases involving extensive state regulation of private activity, “we have consistently held that ‘[t]he mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth Amendment.’ ” Sullivan, 526 U.S. at 52, 119 S. Ct. at 986, 143 L.Ed.2d at 144-45, quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350, 95 S. Ct. 449, 453-54, 42 L.Ed.2d 477, 484 (1974). A private actor will not be held to constitutional standards unless ” ‘there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.’ ” Sullivan, 419 U.S. at 52, 119 S. Ct. at 986, 143 L.Ed.2d at 144-45, quoting Jackson, 419 U.S. at 350, 95 S. Ct. at 453-54, 42 L.Ed.2d at 484.
Whether such a “close nexus” exists depends on whether the State exercised coercive power or provided such significant encouragement, either overt or covert, that the choice must be deemed to be that of the State. Sullivan, 419 U.S. at 52, 119 S. Ct. at 986, 143 L.Ed.2d at 144-45; Jackson, 419 U.S. at 350, 95 S. Ct. at 453-54, 42 L.Ed.2d at 484. “Action taken by private entities with the mere approval or acquiescence of the State is not state action.” Sullivan, 419 U.S. at 52, 119 S. Ct. at 986, 143 L.Ed.2d at 144-45.
The dividing line we seek to apply in this case was clearly drawn by the U.S. Supreme Court in Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S. Ct. 1340, 99 L.Ed.2d 565 (1988). There, the question was whether a provision of Oklahoma’s probate laws requiring contract claims against an estate be presented within a specified time period violated the Due Process Clause.
The issue was whether state action wrongfully deprived a creditor of its property rights. Citing Flagg Brothers, the Court observed: “Private use of state-sanctioned private remedies or procedures does not rise to the level of state action.” Tulsa Professional Collection Services, Inc., 485 U.S. at 485, 108 S. Ct. at 1345, 99 L.Ed.2d at 575. “But,” the Court continued, “when private parties make use of state procedures with the overt, significant assistance of state officials, state action may be found.” Tulsa Professional Collection Services, Inc., 485 U.S. at 486, 108 S. Ct. at 1345, 99 L.Ed.2d at 576.
The Court found significant state action because the probate court was “intimately involved throughout, and without that involvement the time bar is never activated.” Tulsa Professional Collection Services, Inc., 485 U.S. at 487, 108 S. Ct. at 1346, 99 L.Ed.2d at 576. In the case before us, there was no significant state action by a court or by any other state official.
Similarly, the Illinois Supreme Court considered whether the Illinois distress for rent provisions (Ill. Rev. Stat. 1973, ch. 80, pars. 16-34) were unconstitutional in Cousins Club, Inc., 64 Ill. 2d 11. Under the distress for rent provisions, the actual distraint was accomplished by the acts of the lessor; no State action was involved in the procedure. The court noted:
“There are numerous holdings that when a creditor exercises his self-help remedy to repossess personal property as authorized under section 9-503 of the Uniform Commercial Code (Ill. Rev. Stat. 1973, ch. 26, par. 9-503) or under similar statutes, there is no State action involved so far as the question of due process is concerned.” Cousins Club, Inc., 64 Ill. 2d at 15.
The question was not simply whether state action was involved, but rather whether the role of the State was “sufficiently significant, constitutionally speaking, so that one may invoke the protection afforded by the due process clause.” Cousins Club, Inc., 64 Ill. 2d at 18. The court held the State was not “significantly involved, where, as here, the lessor takes possession of his tenant’s property pursuant to a statute that simply codifies the lessor’s common law right to do this and that does not have the State carry out the lessor’s rights.” Cousins Club, Inc., 64 Ill. 2d at 16.
In an attempt to circumvent the holdings in Flagg Brothers, Sullivan, and Cousins Club, Inc., plaintiff contends the United States Supreme Court “unequivocally” held in Lugar that: “While private misuse of a state statute does not describe conduct that can be attributed to the State, the procedural scheme created by the statute obviously is the product of state action.” (Emphasis Added.) Lugar, 457 U.S. at 941, 102 S. Ct. at 2756, 73 L.Ed.2d at 498. Plaintiff, however, ignores the Lugar Court’s determination that a state statute “is subject to constitutional restraint and properly may be addressed in a § 1983 action, if the second element of the state-action requirement is met as well.” (Emphasis added.) Lugar, 457 U.S. at 941, 102 S. Ct. at 2756, 73 L.Ed.2d at 498. The second element is whether, under the facts of the case, a private party may be appropriately characterized as a state actor. Lugar, 457 U.S. at 939, 102 S. Ct. at 2754-55, 73 L.Ed.2d at 496-97.
In this case, there is no question plaintiff’s deprivation of property resulted from the exercise of a right or privilege having its source in state authority, i.e., the lien sale conducted pursuant to section 4 of the Storage Act. See 770 ILCS 95/4 (West 2004). Therefore, the question becomes whether PS may be appropriately characterized as a “state actor.” See Sullivan, 419 U.S. at 50, 119 S. Ct. at 985, 143 L.Ed.2d at 143; Lugar, 457 U.S. at 939, 102 S. Ct. at 2754-55, 73 L.Ed.2d at 496-97.
Similar to the statutes in Flagg Brothers and Sullivan, the Storage Act authorized, but did not require or compel, PS to sell plaintiff’s personal property stored at the facility in order to satisfy a lien for past due rent. Besides establishing the right to a lien and providing a self-help remedy by enacting the Storage Act, the State was not significantly involved in the seizure and sale of plaintiff’s property. See Cousins Club, Inc., 64 Ill. 2d at 16.
While we recognize the State’s decision to provide storage facility owners the option of conducting a lien sale can be seen as encouragement to do just that, “this kind of subtle encouragement is no more significant than that which inheres in the State’s creation or modification of any legal remedy.” See Sullivan, 526 U.S. at 53, 119 S. Ct. at 986, 143 L.Ed.2d at 146. Because the State did not compel, assist in, or significantly encourage the seizure and sale of plaintiff’s property, we find PS’s actions did not amount to “state action.” See Sullivan, 526 U.S. at 53, 119 S. Ct. at 986, 143 L.Ed.2d at 146; Flagg Brothers, 436 U.S. at 164, 98 S. Ct. at 1737, 56 L.Ed.2d at 198.
We therefore conclude the trial court did not err in dismissing Count I of plaintiff’s complaint.
II. Consumer Fraud
Plaintiff contends the trial court erred in dismissing Count II of his complaint because he adequately stated a cause of action under the unfair conduct prong of the Illinois Consumer Fraud Act.
The CFA is “a regulatory and remedial statute intended to protect consumers, borrowers, and business people against fraud, unfair methods of competition, and other unfair and deceptive business practices.” Robinson v. Toyota Motor Credit Corp., 201 Ill. 2d 403, 419, 775 N.E.2d 951 (2002). A complaint raising a claim under the CFA “must state with particularity and specificity the deceptive manner of defendant’s acts or practices, and the failure to make such averments requires the dismissal of the complaint. Robinson, 201 Ill. 2d at 419; Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 502, 675 N.E.2d 584 (1996).
Unfair or deceptive acts or practices are described in the CFA as:
“including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact.” 815 ILCS 505/2 (West 2004).
A plaintiff may allege that conduct is unfair under the CFA without alleging that the conduct is deceptive. Saunders v. Michigan Avenue National Bank, 278 Ill. App. 3d 307, 313, 662 N.E.2d 602 (1996). In determining whether conduct is unfair, the CFA mandates consideration “be given to the interpretations of the Federal Trade Commission and the federal courts relating to Section 5(a) of the Federal Trade Commission Act.” 815 ILCS 505/2 (West 2004). In Federal Trade Comm’n v. Sperry, 405 U.S. 233, 244 n.5, 92 S. Ct. 898, 905, 31 L.Ed.2d 170, 178 (1972), the United States Supreme Court set out the requirements for establishing unfair conduct: (1) whether the practice offends public policy; (2) whether it is immoral, unethical, oppressive, or unscrupulous; and (3) whether it causes consumers substantial injury. See also Saunders, 278 Ill. App. 3d at 313 (“the defendant’s conduct must violate public policy, be so oppressive as to leave the consumer with little alternative but to submit, and injure the consumer.”)
In dismissing Count II of the complaint, the trial court found: “Plaintiff fails to allege that [PS] did not comply with the provisions of the Self Storage Facilities Act; therefore, Plaintiff fails to allege facts that constitute a violation of the act on any basis, let alone unfairness.”
Plaintiff’s complaint, however, alleged PS violated the CFA’s prohibition against unfair practices by failing to provide plaintiff with any form of statutorily-required notice that his property was being sold. Plaintiff specifically alleged that he “never received notice, either by telephone, in-person delivery or certified mail, that [PS] would be seeking to enforce the lien created in its favor,” as “required both by the Act itelf–see 770 ILCS 95/4(A)(C)–and by the express terms of the rental agreement Plaintiff signed.” Plaintiff also alleged PS engaged in unfair conduct by: failing to inform him of the outcome of the lien sale, or even acknowledge that it was statutorily required to return any surplus from such sale to plaintiff on demand; selling his personal property without allowing him the opportunity to exercise his statutory right to redeem the property; and failing to return to him any funds recouped from the sale of goods over and above the lien amount after defendant made a demand for the surplus.
Furthermore, plaintiff alleged PS’s conduct offended Illinois public policy, as embodied in the Storage Act; was unethical and oppressive because it was contrary to well-established industry practices and afforded him no reasonable opportunity to avoid the lien sale; and significantly harmed him because he lost nearly all of his possessions, including items of inestimable personal and sentimental value.
After reviewing the allegations contained in Count II of the complaint, taking them as true, we find they were sufficient to state a cause of action under the CFA for unfair conduct.
We therefore conclude the trial court erred in dismissing Count II of plaintiff’s complaint.
We affirm the trial court’s dismissal of Count I of plaintiff’s complaint. We reverse the trial court’s dismissal of Count II of plaintiff’s complaint and remand for further proceedings.
Affirmed in part; reversed and remanded in part.
HOFFMAN, and SOUTH, JJ., concur.
How Public Storage in Morton Grove, IL Profitably Tricked its Customers by Closing “Due to Extreme Temperatures”
There are many ways to screw a consumer. There are some companies that are experts at this. The Public Storage in Morton Grove, IL used the cold weather as an excuse to close its office on the 6th of January, 2014 in order due to “extreme temperatures”. There was nothing wrong with the heating system in their building. They just shut down for no apparent reason – except perhaps for the coincidental reason that, by shutting down on the afternoon of the 6th of January, they prevented their cash customers from being able to pay their rent before the 7th, when a $40 late fee is slapped on all overdue accounts!
Was it cold in Morton Grove, IL on January 6th, 2014? Yes it was. But it was also very cold the day before and the day after – and on many other days this winter. It seems to us that, barring a power outage or the failure of the heating system, a decent company that cared about its customers would go out of its way to STAY OPEN on a day like this. But not Public Storage – by closing early, they saved money on employee salaries AND reaped a windfall of late fees!
The next day, when customers asked the PS employees if the company would grant them an extra day to pay their rental fees due to PS unilateral decision to close on the 6th, they were told: “no”. “You can pay online if we’re closed”. That is true, of course, if a customer has both a credit or debit card with enough money on it as well as access to an Internet connection. Since many PS customers are forced to operate on a “cash” basis (which Public Storage corporate executives are well aware of) these “alternative payment options” do not help them at all. Public Storage knows this, and they don’t care. That’s because they really don’t want to STORE your stuff: they want to STEAL your stuff!
Text of Public Storage, Morton Grove, IL announcement of temporary closing, Jan 6, 2014
[Public Storage logo]
“Your stuff will be happy here… and so will you.”
Due to extreme temperatures, this property office will close today, 1/6/14, at 1:00PM. We apologize for any inconvenience.
5 Convenient Ways to Pay Your Rent
AutoPay: Simply enroll at publicstorage.com or at any Public Storage [Co.?] property. After you provide us with your checking account, VISA, MasterCard, American Express, Discover or debit card information, we’ll automatically debit your account and take care of the rent.
Online Payment at publicstorage.com: Visit publicstorage.com and [unintelligible] on “Pay My Bill”. Follow 3 easy steps to obtain User Name and password. [Use?] your checking account or pay with your VISA, MasterCard, American Express or Discover credit card.
Pay by Mail: To the address of this facility. Please include your [self-storage?] [account?] number on your Check or Money Order
Pay by Phone: Dial Toll-Free 1-866-444-4747; Enter the [phone?] number for the account you are paying and follow the step by step procedure […]
[Not shown – it’s probably “Pay in Person”]
The office was open in the morning and no one gave any indication that they’d be closing early. If they were so worried about exposing their customers to the cold, wouldn’t that concern have extended to their employees as well? And if so, why didn’t they just give everyone the day off? Instead, they pretended to be open and then suddenly just put up a sign and closed the office. We wonder how many customers hurried over to pay their bills on that freezing cold day only to find the office closed? To Public Storage’s Phil Cacciatore, the manager of this place, this is called “customer service”.
Closing down for no good reason on the last day that customers can pay you without being hit by a huge “late fee” is what we call a low-down dirty move – even by Public Storage’s low-down dirty standards. And it’s another reason why we say: “Public Storage Sucks!”