Brooke v. Capitol Regency LLC

Filing 23

ORDER signed by District Judge John A. Mendez on 5/17/2017 GRANTING 19 Motion to Dismiss without prejudice; GRANTING the plaintiff twenty (20) days to file an amended complaint; ORDERING the defendant to file a responsive pleading to said complaint twenty (20) days thereafter; CAUTIONING the plaintiff that the Clerk of Court will be directed to close this case in the absence of an amended complaint; ORDERING counsel for the defendant to pay $200.00 to the Clerk of Court within five days. (cc: Financial Department) (Michel, G.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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THERESA BROOKE, a married
woman dealing with her sole
and separate claim,

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Plaintiff,

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No.

2:16-cv-02070-JAM-EFB

ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS

v.
CAPITOL REGENCY LLC, a
California Limited Liability
Company dba Hyatt Regency
Sacramento,

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Defendants.
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This matter involves a self-described “tester” who calls

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various hotels to inquire whether they provide ADA compliant pool

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access for disabled persons like herself.

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(“Defendant”), operator of one such hotel, moves this Court to

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dismiss the action for lack of subject matter jurisdiction. 1

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the reasons set forth below, the Court grants Defendant’s motion,

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without prejudice.

Capitol Regency LLC

For

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for May 16, 2017.
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I.

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FACTUAL ALLEGATIONS

The following facts are taken as true for the purposes of
this motion:

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Plaintiff Theresa Brooke is a disabled woman confined to a

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wheelchair.

Compl. at ¶ 4.

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Arizona.

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contacted Defendant’s hotel “for purposes of booking a room for

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personal and business affairs in Sacramento.”

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Plaintiff asked whether the hotel pool or Jacuzzi had a pool lift

Id. at ¶ 1.

She resides in Pinal County,

On some unspecified date, Plaintiff

Id. at ¶ 24.

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or means of access for disabled persons.

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representative informed her that the Jacuzzi did not have such

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means of access.

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unspecified date—“independently verified that the Jacuzzi does

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not have a lift in position for use or other access, but that a

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lift was stored in the corner of the pool area[.]”

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The agent reported its findings to Plaintiff and provided

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Plaintiff with photographs showing “the lack of accessibility.”

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Id.

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Defendant in the near future.”

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removes these barriers, Plaintiff will lodge with Defendant’s

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hotel since she has several upcoming planned visits to

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Sacramento.”

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Id.

Id.

Defendant’s

Plaintiff’s agent—again, on some

Id. at ¶ 25.

“But for these barriers, Plaintiff would lodge with
Id.

“If and when defendant

Id.; see also ¶¶ 29, 30, 34, & 38.

Plaintiff filed this action against Defendant for

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discrimination under the Americans with Disabilities Act (“ADA”)

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due to Defendant’s alleged failure to remove architectural

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barriers to make its lodging services fully accessible to

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disabled individuals.

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declaratory and injunctive relief on that claim, as well as

Id. at ¶¶ 41–49.

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Plaintiff seeks

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attorney’s fees and costs.

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third causes of action arise under state law, the California

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Unruh Civil Rights Act and the California Disabled Persons Act,

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respectively.

Id. at ¶ 49.

Plaintiff’s second and

Id. at ¶¶ 50–61.

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II.

OPINION

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A.

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Defendant moves to dismiss the complaint under Federal Rule

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Legal Standard

of Civil Procedure 12(b)(1) for lack of standing under Article

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III.

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(9th Cir. 2011) (“[L]ack of Article III standing requires

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dismissal for lack of subject matter jurisdiction[.]”).

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MTD at 4–5; see Maya v. Centex Corp., 658 F.3d 1060, 1067

A disabled person claiming access discrimination in

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violation of the ADA must establish Article III standing in order

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to maintain their lawsuit.

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F.3d 939, 946 (9th Cir. 2011).

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a private litigant under the ADA is an injunction, Plaintiff has

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the burden of proving both an injury in fact and the real threat

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of future injury.”

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2:10-cv-02387-JAM-DAD, 2012 WL 2993890, at *2 (E.D. Cal. Jul. 20,

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2012) (citing Chapman).

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particularized and actual or imminent, not conjectural or

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hypothetical.

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(1992).

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plaintiff has encountered a barrier violating the ADA.

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631 F.3d at 947 (citing Doran v. 7-Eleven, Inc., 524 F.3d 1034,

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1044 (9th Cir. 2008)).

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of future injury either “when he [or she] intends to return to a

Chapman v. Pier 1 Imports, Inc., 631
“Because the remedy available to

Johnson v. Overlook at Blue Ravine, LLC, No.

An injury in fact must be concrete and

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

The injury in fact element is met when a disabled
Chapman,

The ADA plaintiff can show a likelihood

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noncompliant accommodation and is therefore likely to reencounter

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a discriminatory barrier” or “when discriminatory architectural

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barriers deter him [or her] from returning to a noncompliant

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accommodation.”

Chapman, 631 F.3d at 950.

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B.

Analysis

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Plaintiff argues that her “call and confirm method” of

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ascertaining ADA violations provides her with “actual notice” of

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the deficiencies, which “triggers the deterrent effect doctrine

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and therefore confers standing.”

Opp. at 1–2.

Plaintiff

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contends this question is open in the Ninth Circuit and there is

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a split between the districts on the answer.

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Id. at 2, 5.

The Court finds that the weight of authority supports

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dismissal of Plaintiff’s ADA claim.

Plaintiff must suffer an

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injury in fact to invoke Article III standing.

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Plaintiff does not allege that she visited Defendant’s hotel or

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encountered a barrier there.

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“Plaintiff’s injury is not ‘particularized and concrete’ . . .

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[or] ‘actual or imminent.’”

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1203, 1210 (C.D. Cal. 2016) (“Binding precedent supports that

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under any theory of standing, including the deterrent effect

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doctrine, an ADA plaintiff must have previously visited a

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noncompliant place of accommodation to have an injury-in-fact

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under Article III.”) .

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to leave the door open for relief, see Peterson, 185 F. Supp. 3d

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at 1207–10 (discussing the “deterrent effect” ADA cases in

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detail), the Ninth Circuit has not held that plaintiffs have

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standing in such circumstances.

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Circuit’s principal “deterrent effect” cases, the “plaintiffs’

However,

Without such allegations,

Brooke v. Peterson, 185 F. Supp. 3d

Although some Ninth Circuit dicta seems

To the contrary, in each of the

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actual knowledge of at least one of the non-compliant barriers

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came through their own percipient, personal encounters with the

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barriers and were not simply being reported by an independent

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agent.”

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WVG, slip op. at 2 (S.D. Cal. May 9, 2017); see Pickern v.

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Holiday Quality Foods Inc., 293 F.3d 1133 (9th Cir. 2002); Doran,

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524 F.3d 1034; Chapman, 631 F.3d 939.

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Circuit permits ADA plaintiffs to rely on expert evidence to

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challenge barriers the plaintiff did not personally encounter

Brooke v. Pacific Gateway Ltd., No. 3:17-cv-0796-CAB-

The fact that the Ninth

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does not affect the analysis, Doran, 524 F.3d at 1047, as this

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allowance only arises where standing is already established.

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It appears that every district court in California to

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address this question has concluded Plaintiff lacks standing.

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See Brooke v. Peterson, 185 F. Supp. 3d at 1207–10, 1213

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(dismissing four related complaints for failure to allege an

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injury in fact); Brooke v. Pacific Gateway Ltd., No. 3:17-cv-

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0796-CAB-WVG (S.D. Cal. May 9, 2017) (“In sum, the Court finds

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Plaintiff[’s] reliance on a telephone call and report of an

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independent agent insufficient to confer standing.”); Brooke v.

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Newport Hotel Holding LLC, No. 8:16-cv-00426-CJC-DFM (C.D. Cal.

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Apr. 29, 2016) (“[T]he Court concludes for its purposes that

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absent extraordinary circumstances, an ADA plaintiff should have

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firsthand knowledge of the presence of at least one barrier in an

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establishment before acquiring standing to sue to remove that

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barrier or others.

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Circuit’s guidance in Pickern and alleviates some of the obvious

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problems with ADA plaintiffs suing a multitude of establishments

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from afar.”); Brooke v. Ayres-Laguna Woods, No. 16-cv-00347-CJC-

This standard is consistent with the Ninth

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KES, 2016 WL 1714880 (C.D. Cal. Apr. 12, 2016) (dismissing

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complaint for failure to allege injury in fact in analogous

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circumstances); Brooke v. Perry Family Trust, No. 2:16-cv-04648-

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DMG-AJW (C.D. Cal. Oct. 3, 2016) (same); Brooke v. Everest Hotel,

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Inc., No. 5:16-cv-01378-DMG-PJW (C.D. Cal. Oct. 31, 2016) (same);

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see also Order to Plaintiff to Show Cause Why the Action Should

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Not Be Dismissed for Lack of Standing, Brooke v. H & K P’ship,

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No. 1:16-cv-1406-AWI-JLT (E.D Cal. Oct. 26, 2016) (order issued

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for 28 related cases) (“Thus, because Plaintiff did not stay at—

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or even visit—the hotels and did not personally encounter the

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alleged barriers, it appears Plaintiff lacks standing under

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Article III to pursue her claims for violations of the ADA.”).

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The Court also finds that Judge Curiel’s dismissal order in

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Brooke v. Kalthia Grp. Hotels supports dismissal.

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01873-GPC-KSC, 2015 WL 7302736 (S.D. Cal. Nov. 18, 2015).

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Contrary to Plaintiff’s argument, only dictum from that decision

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lends credence to Plaintiff’s position.

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dismissed Plaintiff’s complaint for lack of standing and did not,

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as Plaintiff contends, Opp. at 5–6, hold that Plaintiff’s “call

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and confirm method” confers standing.

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WL 7302736, at *5 (“A review of cases . . . reveals that an

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allegation that Plaintiff’s agent verified the violation is not

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sufficient to confer standing.”).

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distinguished that case from the Arizona cases where Plaintiff

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alleged that she “independently verified” the absence of a pool

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lift and was thus found to meet the standing requirements.

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No. 15-cv-

Judge Curiel ultimately

Kalthia Grp. Hotels, 2015

Furthermore, Judge Curiel

In accordance with the California district courts cited

Id.

above, this Court holds that Plaintiff’s “call and confirm
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method,” as alleged in the Complaint, does not confer standing.

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Plaintiff’s ADA claim is thus dismissed, without prejudice.

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C.

Supplemental Jurisdiction

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The only remaining claims are state law claims.

Where a

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district court dismisses all federal claims in an action for lack

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of subject matter jurisdiction, it cannot exercise supplemental

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jurisdiction and must dismiss the state law claims.

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Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 806 (9th Cir.

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2001).

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Herman

Plaintiff’s second and third causes of action are thus

dismissed without prejudice.

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III.

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ORDER

For the reasons set forth above, the Court GRANTS

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Defendant’s Motion to Dismiss WITHOUT PREJUDICE. If Plaintiff

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elects to file an amended Complaint she should do so within

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twenty days of the date of this Order and Defendant should file

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its responsive pleading within twenty days thereafter. If

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Plaintiff does not file an amended Complaint the clerk will be

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directed to close this file.

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The Court issued its Order re Filing Requirements for Cases

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Assigned to Judge Mendez (“Order”) on August 30, 2016.

ECF No.

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3-2.

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to motions to dismiss to fifteen pages and reply memoranda in

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support of motions to dismiss to five pages.

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states that violations of the page limit will result in monetary

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sanctions against counsel in the amount of $50.00 per page and

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that the Court will not consider any arguments made past the page

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limit.

The Order limits memoranda in support of and in opposition

The Order also

Defendant’s Reply Memorandum in support of its Motion to
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Dismiss is four pages longer than the page limit.

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Court has not considered any arguments made after page five of

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the Reply.

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As such, the

Counsel for the Defendant is ordered to pay $200.00 to the
Clerk of the Court within five days of the date of this Order.
IT IS SO ORDERED.
Dated:

May 17, 2017

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