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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 THERESA BROOKE, a married woman dealing with her sole and separate claim, 13 Plaintiff, 14 15 16 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, 17 Defendants. 18 19 This matter involves a self-described “tester” who calls 20 various hotels to inquire whether they provide ADA compliant pool 21 access for disabled persons like herself. 22 (“Defendant”), operator of one such hotel, moves this Court to 23 dismiss the action for lack of subject matter jurisdiction. 1 24 the reasons set forth below, the Court grants Defendant’s motion, 25 without prejudice. Capitol Regency LLC For 26 27 28 1 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. 1 1 I. 2 3 FACTUAL ALLEGATIONS The following facts are taken as true for the purposes of this motion: 4 Plaintiff Theresa Brooke is a disabled woman confined to a 5 wheelchair. Compl. at ¶ 4. 6 Arizona. 7 contacted Defendant’s hotel “for purposes of booking a room for 8 personal and business affairs in Sacramento.” 9 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. 10 or means of access for disabled persons. 11 representative informed her that the Jacuzzi did not have such 12 means of access. 13 unspecified date—“independently verified that the Jacuzzi does 14 not have a lift in position for use or other access, but that a 15 lift was stored in the corner of the pool area[.]” 16 The agent reported its findings to Plaintiff and provided 17 Plaintiff with photographs showing “the lack of accessibility.” 18 Id. 19 Defendant in the near future.” 20 removes these barriers, Plaintiff will lodge with Defendant’s 21 hotel since she has several upcoming planned visits to 22 Sacramento.” 23 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 24 discrimination under the Americans with Disabilities Act (“ADA”) 25 due to Defendant’s alleged failure to remove architectural 26 barriers to make its lodging services fully accessible to 27 disabled individuals. 28 declaratory and injunctive relief on that claim, as well as Id. at ¶¶ 41–49. 2 Plaintiff seeks 1 attorney’s fees and costs. 2 third causes of action arise under state law, the California 3 Unruh Civil Rights Act and the California Disabled Persons Act, 4 respectively. Id. at ¶ 49. Plaintiff’s second and Id. at ¶¶ 50–61. 5 6 II. OPINION 7 A. 8 Defendant moves to dismiss the complaint under Federal Rule 9 Legal Standard of Civil Procedure 12(b)(1) for lack of standing under Article 10 III. 11 (9th Cir. 2011) (“[L]ack of Article III standing requires 12 dismissal for lack of subject matter jurisdiction[.]”). 13 MTD at 4–5; see Maya v. Centex Corp., 658 F.3d 1060, 1067 A disabled person claiming access discrimination in 14 violation of the ADA must establish Article III standing in order 15 to maintain their lawsuit. 16 F.3d 939, 946 (9th Cir. 2011). 17 a private litigant under the ADA is an injunction, Plaintiff has 18 the burden of proving both an injury in fact and the real threat 19 of future injury.” 20 2:10-cv-02387-JAM-DAD, 2012 WL 2993890, at *2 (E.D. Cal. Jul. 20, 21 2012) (citing Chapman). 22 particularized and actual or imminent, not conjectural or 23 hypothetical. 24 (1992). 25 plaintiff has encountered a barrier violating the ADA. 26 631 F.3d at 947 (citing Doran v. 7-Eleven, Inc., 524 F.3d 1034, 27 1044 (9th Cir. 2008)). 28 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 3 1 noncompliant accommodation and is therefore likely to reencounter 2 a discriminatory barrier” or “when discriminatory architectural 3 barriers deter him [or her] from returning to a noncompliant 4 accommodation.” Chapman, 631 F.3d at 950. 5 B. Analysis 6 Plaintiff argues that her “call and confirm method” of 7 ascertaining ADA violations provides her with “actual notice” of 8 the deficiencies, which “triggers the deterrent effect doctrine 9 and therefore confers standing.” Opp. at 1–2. Plaintiff 10 contends this question is open in the Ninth Circuit and there is 11 a split between the districts on the answer. 12 Id. at 2, 5. The Court finds that the weight of authority supports 13 dismissal of Plaintiff’s ADA claim. Plaintiff must suffer an 14 injury in fact to invoke Article III standing. 15 Plaintiff does not allege that she visited Defendant’s hotel or 16 encountered a barrier there. 17 “Plaintiff’s injury is not ‘particularized and concrete’ . . . 18 [or] ‘actual or imminent.’” 19 1203, 1210 (C.D. Cal. 2016) (“Binding precedent supports that 20 under any theory of standing, including the deterrent effect 21 doctrine, an ADA plaintiff must have previously visited a 22 noncompliant place of accommodation to have an injury-in-fact 23 under Article III.”) . 24 to leave the door open for relief, see Peterson, 185 F. Supp. 3d 25 at 1207–10 (discussing the “deterrent effect” ADA cases in 26 detail), the Ninth Circuit has not held that plaintiffs have 27 standing in such circumstances. 28 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 4 1 actual knowledge of at least one of the non-compliant barriers 2 came through their own percipient, personal encounters with the 3 barriers and were not simply being reported by an independent 4 agent.” 5 WVG, slip op. at 2 (S.D. Cal. May 9, 2017); see Pickern v. 6 Holiday Quality Foods Inc., 293 F.3d 1133 (9th Cir. 2002); Doran, 7 524 F.3d 1034; Chapman, 631 F.3d 939. 8 Circuit permits ADA plaintiffs to rely on expert evidence to 9 challenge barriers the plaintiff did not personally encounter Brooke v. Pacific Gateway Ltd., No. 3:17-cv-0796-CAB- The fact that the Ninth 10 does not affect the analysis, Doran, 524 F.3d at 1047, as this 11 allowance only arises where standing is already established. 12 It appears that every district court in California to 13 address this question has concluded Plaintiff lacks standing. 14 See Brooke v. Peterson, 185 F. Supp. 3d at 1207–10, 1213 15 (dismissing four related complaints for failure to allege an 16 injury in fact); Brooke v. Pacific Gateway Ltd., No. 3:17-cv- 17 0796-CAB-WVG (S.D. Cal. May 9, 2017) (“In sum, the Court finds 18 Plaintiff[’s] reliance on a telephone call and report of an 19 independent agent insufficient to confer standing.”); Brooke v. 20 Newport Hotel Holding LLC, No. 8:16-cv-00426-CJC-DFM (C.D. Cal. 21 Apr. 29, 2016) (“[T]he Court concludes for its purposes that 22 absent extraordinary circumstances, an ADA plaintiff should have 23 firsthand knowledge of the presence of at least one barrier in an 24 establishment before acquiring standing to sue to remove that 25 barrier or others. 26 Circuit’s guidance in Pickern and alleviates some of the obvious 27 problems with ADA plaintiffs suing a multitude of establishments 28 from afar.”); Brooke v. Ayres-Laguna Woods, No. 16-cv-00347-CJC- This standard is consistent with the Ninth 5 1 KES, 2016 WL 1714880 (C.D. Cal. Apr. 12, 2016) (dismissing 2 complaint for failure to allege injury in fact in analogous 3 circumstances); Brooke v. Perry Family Trust, No. 2:16-cv-04648- 4 DMG-AJW (C.D. Cal. Oct. 3, 2016) (same); Brooke v. Everest Hotel, 5 Inc., No. 5:16-cv-01378-DMG-PJW (C.D. Cal. Oct. 31, 2016) (same); 6 see also Order to Plaintiff to Show Cause Why the Action Should 7 Not Be Dismissed for Lack of Standing, Brooke v. H & K P’ship, 8 No. 1:16-cv-1406-AWI-JLT (E.D Cal. Oct. 26, 2016) (order issued 9 for 28 related cases) (“Thus, because Plaintiff did not stay at— 10 or even visit—the hotels and did not personally encounter the 11 alleged barriers, it appears Plaintiff lacks standing under 12 Article III to pursue her claims for violations of the ADA.”). 13 The Court also finds that Judge Curiel’s dismissal order in 14 Brooke v. Kalthia Grp. Hotels supports dismissal. 15 01873-GPC-KSC, 2015 WL 7302736 (S.D. Cal. Nov. 18, 2015). 16 Contrary to Plaintiff’s argument, only dictum from that decision 17 lends credence to Plaintiff’s position. 18 dismissed Plaintiff’s complaint for lack of standing and did not, 19 as Plaintiff contends, Opp. at 5–6, hold that Plaintiff’s “call 20 and confirm method” confers standing. 21 WL 7302736, at *5 (“A review of cases . . . reveals that an 22 allegation that Plaintiff’s agent verified the violation is not 23 sufficient to confer standing.”). 24 distinguished that case from the Arizona cases where Plaintiff 25 alleged that she “independently verified” the absence of a pool 26 lift and was thus found to meet the standing requirements. 27 28 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 6 1 method,” as alleged in the Complaint, does not confer standing. 2 Plaintiff’s ADA claim is thus dismissed, without prejudice. 3 C. Supplemental Jurisdiction 4 The only remaining claims are state law claims. Where a 5 district court dismisses all federal claims in an action for lack 6 of subject matter jurisdiction, it cannot exercise supplemental 7 jurisdiction and must dismiss the state law claims. 8 Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 806 (9th Cir. 9 2001). 10 Herman Plaintiff’s second and third causes of action are thus dismissed without prejudice. 11 12 III. 13 ORDER For the reasons set forth above, the Court GRANTS 14 Defendant’s Motion to Dismiss WITHOUT PREJUDICE. If Plaintiff 15 elects to file an amended Complaint she should do so within 16 twenty days of the date of this Order and Defendant should file 17 its responsive pleading within twenty days thereafter. If 18 Plaintiff does not file an amended Complaint the clerk will be 19 directed to close this file. 20 The Court issued its Order re Filing Requirements for Cases 21 Assigned to Judge Mendez (“Order”) on August 30, 2016. ECF No. 22 3-2. 23 to motions to dismiss to fifteen pages and reply memoranda in 24 support of motions to dismiss to five pages. 25 states that violations of the page limit will result in monetary 26 sanctions against counsel in the amount of $50.00 per page and 27 that the Court will not consider any arguments made past the page 28 limit. The Order limits memoranda in support of and in opposition The Order also Defendant’s Reply Memorandum in support of its Motion to 7 1 Dismiss is four pages longer than the page limit. 2 Court has not considered any arguments made after page five of 3 the Reply. 4 5 6 7 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 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8

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