Lindsay v. Shree Enterprise, LLC

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- [11] 12 SHIRLEY LINDSAY, No. 2:21-cv-00299-WBS-CKD 13 Plaintiff, 14 v. MEMORANDUM AND ORDER RE: MOTION TO DISMISS 15 SHREE ENTERPRISE, LLC, a California Limited Liability 16 Company; 17 Defendant. [18] 19 ----oo0oo---- 20 Plaintiff Shirley Lindsay (“plaintiff”) brought this 21 action against Shree Enterprises, LLC (“defendant”) seeking 22 injunctive relief and damages against defendant for violation of 23 the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 24 et. seq., and violation of the Unruh Civil Rights Act, Cal. Civ. 25 Code § 51–53. Defendant now moves to dismiss plaintiff’s 26 complaint in its entirety. (See “Mot. to Dismiss” (Docket No. 27 12).) 28 I. Factual and Procedural Background 1 Plaintiff is a California resident with physical 2 disabilities who is substantially limited in her ability to walk. 3 (First Am. Compl. (“FAC”) at ¶ 1.) (Docket No. 9.) She suffers 4 from arthritis in the hips, knees, and hands and uses a 5 wheelchair, walker, or cane for mobility. (Id.) Defendant Shree 6 Enterprises, LLC owns and operates The Greens Hotel located at 7 4331 Stockton Boulevard in Sacramento, California. (Id. at ¶ 2.) 8 Plaintiff planned on making a trip to Sacramento in August 2021. 9 (Id. at ¶ 12.) She chose The Greens Hotel because it was at a 10 desirable price and location. (Id. at ¶ 13.) Due to plaintiff’s 11 condition, she is unable to or is seriously challenged in her 12 ability to stand, ambulate, reach objects, transfer from her 13 chair to other equipment and maneuver around fixed objects. (Id. 14 at ¶ 14.) Plaintiff requires an accessible guest room and says 15 she needs to be given information about the accessible features 16 in hotel rooms so that she can confidently book these rooms. 17 (Id. at ¶ 15.) On January 19, 2021, plaintiff went to The Greens 18 Hotel reservation website at https://www.thegreensstockton.com 19 seeking to book an accessible room at the location. (Id. at ¶ 20 16.) 21 Plaintiff alleges that there was insufficient 22 information about the accessible features in the “accessible 23 rooms” at the hotel to permit her to assess independently whether 24 a given hotel room would work for her. (Id. at ¶ 18.) The hotel 25 website has numerous places where it identifies accessible 26 features that are available but, when it comes to features for 27 any particular or given hotel room, the hotel reservation website 28 system provides no information about the features of the roll-in 1 shower. (Id. at ¶ 19.) The hotel states, for example, that its 2 “Accessible King” bedroom “comes with key accessible features 3 like a roll-in shower” but does not mention any sort of shower or 4 features within the accessible shower. (Id. at ¶ 20.) The hotel 5 provides a closeup photo of the roll-in shower which appears to 6 show blatant violations, clearly demonstrating that the shower is 7 not accessible and would create problems for the plaintiff. 8 (Id.) 9 Plaintiff alleges that in standard roll-in showers, the 10 shower seat must fold up and cannot be a permanent seat. (Id. at 11 ¶ 21.) Roll-in showers must also have controls, faucets, and 12 shower spray installed on the back wall adjacent to the seat wall 13 and can cannot be further than 27 inches from the seat wall. 14 (Id.) In the picture provided on The Greens Hotel website, the 15 controls and the shower head appear far away from the seat and it 16 does not appear that a wheelchair user using the seat could 17 operate the controls. (Id. at ¶ 22.) 18 She also alleges that the shower spray unit must be 19 detachable and with a hose at least 59 inches long that can be 20 used as both a fixed-position shower head and as a hand-held 21 shower. (Id. at ¶ 23.) In the photo on The Greens Hotel 22 website, the shower spray unit appears to be fixed, and it does 23 not appear as though a detachable spray unit is provided. (Id.) 24 The hotel’s photo of the “accessible bathroom” in the “accessible 25 guestroom” also appears to show a mirror that is unusable by 26 wheelchair users because the bottom edge of the mirror is not 27 below 40 inches from the floor. (Id. at ¶ 24.) 28 Plaintiff alleges that she was unable to book a hotel 1 room at The Greens Hotel because she could not book the hotel 2 room with any confidence or knowledge that the hotel room would 3 work for her due to her disability. (Id. at ¶ 25.) Plaintiff 4 alleges that because of the lack of information regarding the 5 accessibility of bathrooms, the conflicting information presented 6 by the photo, and plaintiff’s recognition of the actual barriers, 7 she was deterred from booking this room. (Id. at ¶ 26.) 8 Plaintiff says she will continue to travel to the Sacramento area 9 on a regular and ongoing basis and will patronize The Greens 10 Hotel once the defendant has changed its policies to comply with 11 the ADA such that she can determine whether the hotel is 12 physically accessible during the reservation process. (Id. at ¶ 13 28.) 14 II. Request for Judicial Notice 15 Federal Rule of Evidence 201 permits a court to notice 16 a fact if it is “not subject to reasonable dispute.” Fed. R. 17 Evid. 201(b). A fact is “not subject to reasonable dispute” if 18 it is “generally known,” or “can be accurately and readily 19 determined from sources whose accuracy cannot reasonably be 20 questioned." See id. In its request for judicial notice in 21 support of its motion to dismiss (Docket No. 12-4), defendant 22 requests that the court take judicial notice of: (1) a copy of 23 The Greens Hotel website “landing page”, (2) relevant webpages of 24 The Greens Hotel, (3) a list of lawsuits filed by Shirley Lindsay 25 in the Central and Eastern Districts of California between 2015 26 and 2020; (4) the Consent Decree in United States v. Hilton 27 Worldwide Inc., No. 10-1924, filed in the District Court of the 28 District of Columbia on November 28, 2010, and (5) the Order in 1 Laufer v. Mann Hospitality, 996 F. 3d 269 , 271–74 (5th Cir. 2 2021). 3 Plaintiff opposes defendant’s request for judicial 4 notice of the website pages proffered by defendant because they 5 are undated and allegedly do not reflect the website that she 6 visited in January 2021. (See Opp’n to Mot. to Dismiss at 1.) 7 (Docket No. 16.) Plaintiff also opposes defendant’s request for 8 judicial notice as to plaintiff’s litigation history on the 9 grounds that it is not relevant to the issues before the court. 10 (See id. at 2–3.)1 11 In its reply, defendant also asks the court to take 12 judicial notice of several more items. (See Docket No. 17-1.) 13 These include: (1) a series of screen captures from Archive.org’s 14 “Wayback Machine” from The Greens Hotel’s website on August 6, 15 2020; (2) a series of screen captures from Archive.org’s “Wayback 16 Machine” from The Greens Hotel’s website on September 23, 2020; 17 (3) a series of screen captures from Archive.org’s “Wayback 18 Machine” from The Greens Hotel’s website on November 24, 2020; 19 (4) a copy of the initial disclosures from Shirley Lindsay in 20 this matter; (5) the Order Granting Defendant’s Motion to Dismiss 21 in Whitaker v. LL South San Francisco, L.P., Case No. 21-cv22 23 1 To her opposition plaintiff attaches an undated screenshot of how the “bathroom accessibility” features of the 24 website purportedly looked on January 19, 2021, but does not request that the court take judicial notice of this document. [25] (See Opp’n to Mot. to Dismiss at Ex. 1.) The court will not take judicial notice of plaintiff’s undated screenshot because it is [26] not a fact that “can be accurately and readily determined from 27 sources whose accuracy cannot reasonably be questioned.” See Fed. R. Evid. 201. The court has therefore not taken this 28 “evidence” into consideration in deciding this motion. 1 00632-HSG, 2021 WL 2291848 , at *1–6 (N.D. Cal. June 4, 2021); (6) 2 the Order Granting Defendant’s Motion to Dismiss in Rios v. 3 Leadwell Global Property, Case No. 21-cv-00267-PJH, 2021 WL 4 2207408, at *1-7 (N. D. Cal. June 1, 2021); and (7) the Order 5 Granting Defendant’s Motion to Dismiss in Garcia v. Pinnacle 6 1617, LLC, Case No: 21-cv-00126-CAB-AGS, 2021 WL 1963823 , at *1–6 7 (S.D. Cal. May 17, 2021). 8 The court declines to take judicial notice of any of 9 the materials submitted by defendant in either its motion or its 10 reply. The court does not find plaintiff’s litigation history 11 relevant to this matter; she has already informed the court that 12 she is an “ADA tester”, or someone who evaluates and documents 13 the accessibility of businesses and websites to ensure that they 14 comply with the ADA, and her litigation history is not helpful in 15 deciding any of the issues before the court. (See FAC at ¶ 27.) 16 The screenshots of the websites attached to the motion to dismiss 17 are undated, and plaintiff contends that the website has 18 substantially changed since she first visited it in January 2021. 19 (See Opp’n to Mot. to Dismiss at 7–9.)2 20 The court similarly declines to take judicial notice of 21 screenshots of The Greens Hotel website obtained through 22 Archive.org’s “Wayback Machine”. None of the proffered 23 screenshots date from the relevant time period of January 2021, [24] 2 Garcia v. Sweet 2017, LLC, Case No. 2:20-cv-01281-JAM25 DB, 2021 WL 2417139 , at * 2 (E.D. Cal. June 14, 2021), cited by defendant in support of its argument that the court could take [26] judicial notice of the defendant’s web pages, is distinguishable 27 from the present case because the plaintiff did not challenge the authenticity of the web pages at issue or object to the court 28 taking judicial notice of those web pages. See id. at *2 . 1 and the court cannot conclude at this time that the contents of 2 these web pages are “facts that can be accurately and readily 3 determined from sources whose accuracy cannot reasonably be 4 questioned.” See Fed. R. Evid. 201(b).3 Accordingly, the court 5 will deny defendant’s requests for judicial notice. (See Docket 6 Nos. 12-4; 17-1.) 7 III. Discussion 8 Defendant argues that plaintiff lacks standing and the 9 complaint must therefore be dismissed pursuant to Federal Rule of 10 Civil Procedure 12(b)(1). (See Mot. to Dismiss at 6.) Defendant 11 also argues that plaintiff has failed to state a claim as a 12 matter of law and that her complaint should be dismissed under 13 Federal Rule of Civil Procedure 12(b)(6). (See id. at 6–7.) The 14 court will address each argument in turn. 15 A. Motion to Dismiss under 12(b)(1) 16 Federal Rule of Civil Procedure 12(b)(1) governs 17 motions for lack of subject matter jurisdiction. See Fed. R. 18 Civ. P. 12(b)(1). To have standing to sue in federal court, a 19 plaintiff must have “(1) suffered an injury in fact, (2) that is [20] 3 At oral argument, defendant emphasized that other [21] district courts have previously taken judicial notice of 22 Arvhive.org’s “Wayback Machine” and pointed the court to UL LLC v. The Space Chariot Inc. et al., 250 F. Supp. 3d 596 , 604 n.2 23 (C.D. Cal. 2017). To the extent that those cases may be read to be inconsistent with the court’s ruling here, this court 24 disagrees with them. Moreover, in UL LLC, the court took judicial notice of pages from the “Wayback Machine” in the [25] context of a motion for summary judgment, not at the motion to dismiss stage. See id. at 596 . Moreover, none of the cases [26] cited by UL LLC in support of the proposition that a court may 27 take judicial notice of the contents of web pages from the “Wayback Machine” were in the context of a motion to dismiss. 28 See id. at 604 n.2. 1 fairly traceable to the challenged conduct of the defendant, and 2 (3) that is likely to be redressed by a favorable judicial 3 decision.” See Spokeo v. Robbins, 136 S. Ct. 1540 , 1547 4 (2016)(internal citations omitted). 5 To establish injury in fact, “a plaintiff must show 6 that he or she suffered an invasion of a legally protected 7 interest that is concrete and particularized and actual or 8 imminent, not conjectural or hypothetical.” Id. (internal 9 quotations and citations omitted). “Article III standing 10 requires a concrete injury even in the context of a statutory 11 violation.” Id. In the context of injunctive relief, plaintiff 12 must additionally demonstrate “a sufficient likelihood that [she] 13 will again be wronged in a similar way.” Fortyune v. Am. Multi14 Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004). The party 15 invoking federal jurisdiction must establish each element with 16 the manner and degree of evidence required at the successive 17 stages of the litigation. See Carrico v. City and Cnty. of San 18 Francisco, 656 F.3d 1002, 1006 (9th Cir. 2011). Accordingly, at 19 the motion to dismiss stage, the court will base its analysis on 20 plaintiff’s First Amended Complaint, which the court accepts as 21 true. See id. 22 Defendant contends that plaintiff has only suffered an 23 “informational injury”, not an injury in fact, and therefore 24 lacks standing under the principles set forth by the Supreme 25 Court in Spokeo. (See Mot. to Dismiss at 7–9.) Defendant relies 26 solely on Laufer v. Mann Hospitality, L.L.C., 996 F.3d 269 , 271– [28] 1 274 (5th Cir. 2021) to support its proposition.4 In Laufer, the 2 Fifth Circuit found that an ADA tester had not adequately alleged 3 that she had suffered an injury-in-fact to support standing 4 because she visited the hotel’s website solely “for the purpose 5 of reviewing and assessing the accessible features at the hotel 6 and ascertain[ing] whether the websites contain the information 7 required by [ADA regulations].” Id. at 272 . The Fifth Circuit 8 also emphasized that the plaintiff attested only a general intent 9 to visit the area someday, not a specific desire to visit the 10 hotel at issue. See id. 11 At least from the allegations of the First Amended 12 Complaint, the facts of this case are distinguishable from those 13 in Laufer in that unlike the plaintiff in Laufer who expressed 14 only a general desire to travel to Texas following the COVID-19 15 pandemic, see Laufer, 996 F.3d at 272 , plaintiff here has stated 16 that she planned to travel to Sacramento, California in August 17 2021. (See FAC at ¶ 12.) She specifically chose The Greens 18 Hotel because it had a desirable price and location. (See id. at 19 ¶ 13.) Plaintiff also alleges that she travels frequently and 20 will continue to travel to the Sacramento area on a regular and 21 ongoing basis and seek to patronize this hotel. (See id. at ¶¶ 22 27–28.) The court finds that these allegations sufficiently 23 pleaded a concrete injury-in-fact for standing purposes. 24 B. Motion to Dismiss under 12(b)(6) 25 Federal Rule of Civil Procedure 12(b)(6) allows for [26] 27 4 The Ninth Circuit has yet to rule on the standing requirements for an ADA violation of the “Reservations Rule” on 28 websites. (See Mot. to Dismiss at 8.) 1 dismissal when the plaintiff’s complaint fails to state a claim 2 upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). 3 The inquiry before the court is whether, accepting the 4 allegations in the complaint as true and drawing all reasonable 5 inferences in the plaintiff’s favor, the complaint has stated “a 6 claim to relief that is plausible on its face.” Bell Atl. Corp. 7 v. Twombly, 550 U.S. 544, 570 (2007). “The plausibility standard 8 is not akin to a ‘probability requirement,’ but it asks for more 9 than a sheer possibility that a defendant has acted unlawfully.” 10 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare 11 recitals of the elements of a cause of action, supported by mere 12 conclusory statements, do not suffice.” Id. Although legal 13 conclusions “can provide the framework of a complaint, they must 14 be supported by factual allegations.” Id. at 679 . 15 To succeed on a discrimination claim under Title III of 16 the ADA, a plaintiff must show that “(1) [s]he is disabled within 17 the meaning of the ADA; (2) the defendant is a private entity 18 that owns, leases, or operates a place of public accommodation; 19 and (3) the plaintiff was denied public accommodation by the 20 defendant because of [her] disability.” See Arizona ex rel. 21 Goddard v. Harkins Amusement Enters., Inc., 630 F.3d 666 , 670 22 (9th Cir. 2011). The third element is satisfied when the 23 plaintiff can show a violation of accessibility standards. See 24 Rodriguez v. Barrita, Inc., 10 F. Supp. 3d 1062, 1073 (N.D. Cal. 25 2014). It is the third element that is at issue here because 26 plaintiff asserts that The Greens Hotel’s reservation system 27 violates the ADA Reservations Rule by failing to describe the 28 hotel’s accessibility features in sufficient detail, thus denying 1 her public accommodation. (See FAC at ¶ 34.) 2 Under the “Reservations Rule” promulgated pursuant to 3 the ADA, a hotel’s reservation website must “[i]dentify and 4 describe accessible features in the hotels and guest rooms 5 offered through its reservations service in enough detail to 6 reasonably permit individuals with disabilities to assess 7 independently whether a given hotel or guest room meets his or 8 her accessibility needs. . . .” 28 C.F.R. § 36.302 (e)(1)(ii). 9 The Department of Justice’s (“DOJ”) so-called 10 “guidance” on the Reservations Rule states: 11 The Department recognizes that a reservations system is not intended to be an accessibility 12 survey. However, specific information concerning accessibility features is essential to travelers 13 with disabilities. Because of the wide variations in the level of accessibility that 14 travelers will encounter, the Department cannot specify what information must be included in 15 every instance. For hotels that were built in compliance with the 1991 Standards, it may be 16 sufficient to specify that the hotel is accessible and, for each accessible room, to 17 describe the general type of room (e.g., deluxe executive suite), the size and number of beds 18 (e.g., two queen beds), the type of accessible bathing facility (e.g., roll-in shower), and 19 communications features available in the room (e.g., alarms and visual notification devices). . 20 . 21 [O]nce reservations are made . . . many individuals with disabilities may wish to contact 22 the hotel or reservations service for more detailed information. At that point, trained 23 staff (including staff located on-site at the hotel and staff located off-site at a 24 reservations center) should be available to provide additional information such as the 25 specific layout of the room and bathroom, shower design, grab-bar locations, and other amenities 26 available (e.g., bathtub bench). . . [27] 28 C.F.R. pt. 36, App. A (2010), Title III Regulations 2010 [28] 1 Guidance and Section-by-Section Analysis, (“DOJ Guidance”). The 2 DOJ’s administrative guidance in interpreting the requirements of 3 the ADA is entitled to deference. See Bragdon v. Abbott, 524 4 U.S. 624 , 646 (1998) (“As the agency directed by Congress to 5 issue implementing regulations . . . to render technical 6 assistance explaining the responsibilities of covered individuals 7 and institutions and to enforce Title III in court, the 8 [Department of Justice’s] views are entitled to deference.”). 9 Defendant argues that The Greens Hotel website provides 10 more accessibility information than is required under the 11 “Reservations Rule.” (See Mot. to Dismiss at 9.) District 12 courts throughout California have held that the “Reservations 13 Rule” does not require a hotel to include all potentially 14 relevant accessibility information on its website. See Barnes v. 15 Marriott Hotel Servs., Inc., No. 15-cv-01409-HRL, 2017 WL 635474 16 at *10 (N.D. Cal. Feb. 16, 2017) (finding website with ADA 17 designation and general “accessible room” designations 18 appropriate and acceptable under the DOJ’s guidance); see 19 Rutherford v. Evans Hotels, LLC, 2020 WL 5257868 , at *17 (S.D. 20 Cal. Sept. 3, 2020) (“[J]ust because [plaintiff] would like 21 additional details does not mean that he is entitled to it under 22 Section 36.302(e)(1)(ii)”). 23 However, at least one district court in California has 24 held that although a website need not address every potential 25 accessibility issue, that does not mean that it does not need to 26 describe any potential issue, or only those that the DOJ Guidance 27 notes may be sufficient. See Garcia v. Patel & Joshi Hosp. 28 Corp., Case No. EDCV 20-2666 JGB (PVCx), 2021 WL 1936809 , at *4 1 (C.D. Cal. Mar. 19, 2021). The Garcia court noted that the DOJ 2 Guidance states that because “there are wide variations in the 3 level of accessibility that travelers will encounter,” the DOJ 4 does not “specify what information must be included in every 5 instance.” Id. The Garcia court therefore concluded that, as 6 pleaded, the plaintiff’s case might be one instance where 7 additional information was needed even if it complied with 8 information that the DOJ Guidance has stated “might be 9 sufficient” in some cases. Id. at 5–6. 10 This court cannot determine on a motion to dismiss 11 whether The Greens Hotel website actually provided sufficient 12 information under the “Reservations Rule” because (1) the court 13 cannot take judicial notice of the screenshots of the hotel’s 14 webpages proffered by defendant, and (2) the regulation itself 15 requires an assessment of reasonableness which is 16 characteristically a question for the trier of fact rather than 17 the court to determine. Therefore, taking plaintiff’s 18 allegations to be true and construing reasonable inferences in 19 the light most favorable to plaintiff, the court finds that 20 plaintiff plausibly alleges that The Greens Hotel website did not 21 “describe accessible features. . . in enough detail to reasonably 22 permit [her] to assess independently” whether the hotel rooms 23 meet her accessibility needs. See 28 C.F.R. § 36.302 (e)(1)(ii). 24 The court will accordingly deny defendant’s motion to dismiss 25 plaintiff’s second claim under the California Unruh Civil Rights 26 Act predicated on the alleged underlying ADA violation. 27 IT IS THEREFORE ORDERED that defendant’s motion to 28 dismiss, (Docket No. 12), be, and the same hereby is, DENIED. 1 | Dated: July 1, 2021 Ph hata Vim Lehn 2 UNITED STATES DISTRICT JUDGE