Civil Rights Education and Enforcement Center et al v. Hospitality Properties Trust

Filing 88

ORDER DENYING MOTION FOR CLASS CERTIFICATION by Judge Jon S. Tigar; denying 60 Motion for Class Certification. (wsn, COURT STAFF) (Filed on 4/15/2016)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

CIVIL RIGHTS EDUCATION AND
ENFORCEMENT CENTER, et al.,
Plaintiffs,

8

ORDER DENYING MOTION FOR
CLASS CERTIFICATION

v.

9
10

HOSPITALITY PROPERTIES TRUST,

11
United States District Court
Northern District of California

Case No. 15-cv-00221-JST

Re: ECF No. 60

Defendant.

12

Plaintiffs have brought this putative class action, alleging that Defendant Hospitality

13

Properties Trust (“HPT”), which owns approximately 300 hotels spread across 38 states, has

14

violated Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181, et seq. by

15

failing to provide equivalent wheelchair-accessible transportation at its hotels that provide

16

transportation to guests who do not use wheelchairs. Before the Court is Plaintiffs’ motion for

17

class certification. ECF No. 60. The motion is denied.

18

I.

BACKGROUND

19

A.

Factual and Procedural Background

20

Plaintiff Civil Rights Education and Enforcement Center (“CREEC”) is “a nationwide civil

21

rights membership organization based in Denver, Colorado whose mission includes . . . ensuring

22

that persons with disabilities participate in our nation’s civic life without discrimination, including

23

in the opportunity to benefit from the services provided by hotels.” ECF No. 38 ¶ 9. Each of the

24

Named Plaintiffs (Ann Cupolo-Freeman, Ruthee Goldkorn, and Julie Reiskin) is a member of

25

CREEC, has a disability within the meaning of the ADA, and uses a wheelchair for mobility. Id.

26

¶¶ 10–12. Each of the Named Plaintiffs “requires a wheelchair accessible vehicle in order to

27

utilize transportation services offered by hotels” and has served as a “tester” of a particular HPT-

28

owned hotel’s compliance with ADA requirements regarding wheelchair-accessible transportation.

1

Id. Defendant HPT is a real estate investment trust (“REIT”), which owns approximately 300

2

hotels across 38 states, including approximately 37 hotels in California. Id. ¶¶ 2, 13.

3

Approximately 142 of these hotels provide transportation services to guests. ECF No. 60 at 5.
On October 28, 2014, Plaintiff Cupolo-Freeman called the Country Inn & Suites located in

4
5

Sunnyvale, CA—a hotel owned by HPT which provides its guests with a shuttle to and from the

6

San Jose International Airport—and asked if the hotel provided wheelchair-accessible shuttle

7

services. Id. ¶ 15. She was informed that the hotel does not offer wheelchair-accessible shuttle

8

services. Id. On June 17, 2015, Plaintiff Cupolo-Freeman once again called the Country Inn &

9

Suites and once again was informed that the hotel does not provide a wheelchair-accessible shuttle
service. Id. ¶ 17. She was told, however, that the hotel could make arrangements with a taxi

11
United States District Court
Northern District of California

10

company for wheelchair-accessible transportation. Id. Cupolo-Freeman called the taxi company

12

that the hotel used and was told that reservations should be made “at a minimum at least 48 hours

13

in advance to ensure a ride.” Id. ¶ 18. She alleges that “[t]he purportedly accessible transportation

14

services are not equivalent to those offered nondisabled guests [because] the accessible

15

transportation services are not offered during the same hours that the inaccessible transportation

16

services are offered; the accessible transportation services require longer advance notice than the

17

inaccessible transportation services; and information concerning the inaccessible shuttle is

18

available on the hotel website, whereas information concerning the accessible shuttle is not.” Id. ¶

19

19.

20

On June 23, 2015, Plaintiff Reiskin called a second HPT-owned hotel, the Hyatt Place in

21

Colorado Springs, CO, which provides guests with free local shuttle service to locations within a

22

five-mile radius of the hotel. Id. ¶ 27–28. She was informed that the hotel does not have a

23

wheelchair-accessible shuttle. Id. ¶ 28. She “was told that the hotel could request a local

24

[wheelchair]-accessible taxi for a guest requiring accessible transportation, but that the guest

25

would have to pay for the taxi.” Id. She alleges that the hotel’s “purportedly accessible

26

transportation services are not equivalent to those offered nondisabled guests [because] guests who

27

use wheelchairs or scooters for mobility must pay for accessible transportation services, whereas

28

nondisabled guests are provided with free transportation services[,] and information concerning
2

1

the inaccessible shuttle is available on the hotel website, whereas information concerning the

2

accessible shuttle is not.” Id. ¶ 29.

3

On June 29, 2015, Plaintiff Reiskin called a third HPT-owned hotel, the Staybridge Suites

4

San Francisco Airport, which provides its guests with complimentary shuttle service to and from

5

the San Francisco Airport and to other locations within a five-mile radius of the hotel. Id. ¶¶ 32–

6

33. She was informed that the hotel does not have a wheelchair-accessible shuttle, and that the

7

hotel would need at least two days advance notice to arrange accessible transportation for a guest,

8

whereas nondisabled guests were only required to notify the hotel an hour in advance for the

9

airport shuttle and a day in advance for the non-airport shuttle. Id. ¶¶ 32–33. She alleges that the
hotel’s “purportedly accessible transportation services are not equivalent to those offered

11
United States District Court
Northern District of California

10

nondisabled guests [because] guests who use wheelchairs or scooters for mobility must provide at

12

least two days advance notice, whereas nondisabled guests need only provide one hour notice for

13

the airport shuttle, and one day notice for the non-airport shuttle; nondisabled guests know in

14

advance that they will not be required to pay for their transportation services, whereas disabled

15

guests do not know whether this will be the case’ and information concerning the inaccessible

16

shuttle is available on the hotel website, whereas information concerning the accessible shuttle is

17

not.” Id. ¶34.

18

Finally, on June 24, 2015, Plaintiff Goldkorn called a fourth HPT-owned hotel, the

19

Staybridge Suites San Diego-Sorrento Mesa, which provides guests with free local shuttle service

20

to locations within a five-mile radius of the hotel. Id. ¶ 22. She was similarly informed that the

21

hotel does not offer a wheelchair-accessible shuttle. Id. ¶ 23. She “was told that the hotel could

22

request a local wheelchair-accessible taxi for a guest requiring accessible transportation, but that

23

the guest would have to pay for the taxi.” Id. Goldkorn alleges that “[t]he purportedly accessible

24

transportation services are not equivalent to those offered nondisabled guests [because] guests who

25

use wheelchairs or scooters for mobility must pay for accessible transportation services, whereas

26

nondisabled guests are provided with free transportation services.” Id. ¶ 24.

27

Each of the Named Plaintiffs alleges that had the HPT-owned hotel-in-question provided

28

equivalent wheelchair-accessible shuttle services, she intended to stay at the hotel and use those
3

1

services. Id. ¶¶ 16, 20, 25, 30, 35. Each of the Named Plaintiffs also alleges that she was deterred

2

from staying at the hotel-in-question by the hotel’s lack of equivalent wheelchair-accessible

3

shuttle services. Id.
On January 15, 2015, Plaintiffs filed their initial Complaint, raising claims under Title III

4
5

of the ADA, 42 U.S.C. § 12181, et seq. and California’s Unruh Civil Rights Act, Cal. Civ. Code §

6

51, et seq. ECF No. 1. On August 3, 2015, Plaintiffs filed their First Amended Complaint

7

(“FAC”), raising the same two claims. ECF No. 38. The FAC does not seek damages; it seeks

8

only declaratory and injunctive relief. ECF No. 38 at 13. On November 13, 2015, Plaintiffs filed

9

a motion seeking to certify a class consisting of:

10

Individuals who use wheelchairs or scooters for mobility who, since
January 15, 2013, have been, or in the future will be, denied the full
and equal enjoyment of transportation services offered to guests at
hotels owned and/or operated by Hospitality Properties Trust
because of the lack of equivalent accessible transportation services
at those hotels.

United States District Court
Northern District of California

11
12
13

ECF No. 60 at 14.
14
B.

15
16

The Americans with Disabilities Act

The ADA was enacted “to provide clear, strong, consistent, enforceable standards
addressing discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(2).

17
Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 944 (9th Cir. 2011). The ADA provides that
18

“[n]o individual shall be discriminated against on the basis of disability in the full and equal

19
enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any
20
place of public accommodation by any person who owns, leases (or leases to), or operates a place
21

of public accommodation.” Id. § 12182(a).

22
23

The ADA specifically provides that “[i]t shall be considered discrimination for a private
entity which operates a fixed route system1 . . . to purchase or lease a vehicle with a seating

24
capacity in excess of 16 passengers (including the driver) for use on such system . . . that is not
25
readily accessible to and usable by individuals with disabilities, including individuals who use
26
27
28

1

“The term ‘fixed route system’ means a system of providing transportation of individuals (other
than by aircraft) on which a vehicle is operated along a prescribed route according to a fixed
schedule.” 42 U.S.C. § 12181(4).
4

1

wheelchairs.” Id. § 12182(b)(2)(B)(i). Moreover, “if a private entity which operates a fixed route

2

system . . . purchases or leases a vehicle with a seating capacity of 16 passengers or less (including

3

the driver) . . . that is not readily accessible to or usable by individuals with disabilities, it shall be

4

considered discrimination for such entity to fail to operate such system so that, when viewed in its

5

entirety, such system ensures a level of service to individuals with disabilities, including

6

individuals who use wheelchairs, equivalent to the level of service provided to individuals without

7

disabilities.” Id. § 12182(b)(2)(B)(ii).
The ADA also prohibits discrimination with respect to “demand responsive systems.”2 In

8
9

this respect, the ADA provides that discrimination includes:

10

(i) a failure of a private entity which operates a demand responsive
system . . . to operate such system so that, when viewed in its
entirety, such system ensures a level of service to individuals with
disabilities, including individuals who use wheelchairs, equivalent to
the level of service provided to individuals without disabilities; and

United States District Court
Northern District of California

11
12
13

(ii) the purchase or lease by such entity for use on such system of a
vehicle with a seating capacity in excess of 16 passengers (including
the driver) . . . that is not readily accessible to and usable by
individuals with disabilities (including individuals who use
wheelchairs) unless such entity can demonstrate that such system,
when viewed in its entirety, provides a level of service to individuals
with disabilities equivalent to that provided to individuals without
disabilities.

14
15
16
17

Id. § 12182(b)(2)(C).
18
19

II.

JURISDICTION
The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 because Plaintiffs’

20
first claim for relief arises under Title III of the ADA, 42 U.S.C. § 12181, et seq. The Court has
21

subject matter jurisdiction over Plaintiffs’ California Unruh Civil Rights Act claim pursuant to 28

22
U.S.C. § 1367.
23
24

III.

LEGAL STANDARD
Class certification under Rule 23 is a two-step process. First, Plaintiff must demonstrate

25

that the numerosity, commonality, typicality, and adequacy requirements of 23(a) are met. “One

26
27
28

2

“The term ‘demand responsive system’ means any system of providing transportation of
individuals by a vehicle, other than a system which is a fixed route system.” 42 U.S.C. §
12181(3).
5

1

or more members of a class may sue or be sued as representative parties on behalf of all members

2

only if (1) the class is so numerous that joinder of all members is impracticable; (2) there are

3

questions of law or fact common to the class; (3) the claims or defenses of the representative

4

parties are typical of the claims or defenses of the class; and (4) the representative parties will

5

fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a). “Class certification

6

is proper only if the trial court has concluded, after a ‘rigorous analysis,’ that Rule 23(a) has been

7

satisfied.” Wang v. Chinese Daily News, Inc., 737 F.3d 538, 542–43 (9th Cir. 2013) (quoting

8

Wal–Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011)). In addition, “[w]hile it is not an

9

enumerated requirement of Rule 23, courts have recognized that “in order to maintain a class
action, the class sought to be represented must be adequately defined and clearly ascertainable.”

11
United States District Court
Northern District of California

10

Vietnam Veterans of Am. v. C.I.A., 288 F.R.D. 192, 211 (N.D. Cal. 2012) (quoting

12

DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970)).
Second, a plaintiff must also establish that one of the bases for certification in Rule 23(b) is

13
14

met. Here, Plaintiff invokes Rule 23(b)(2), which requires that “the party opposing the class has

15

acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or

16

corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P.

17

23(b)(2). The “class plaintiff has the burden of showing that the requirements of Rule 23(a) are

18

met and that the class is maintainable pursuant to Rule 23(b).” Narouz v. Charter

19

Communications, LLC, 591 F. 3d 1261, 1266 (9th Cir. 2010).

20

IV.

ANALYSIS

21

A. Standing

22

Before the Court decides whether to certify a class, the Court must determine whether

23

Plaintiffs have Article III standing. “A party invoking federal jurisdiction has the burden of

24

establishing that it has satisfied the ‘case-or-controversy’ requirement of Article III of the

25

Constitution . . . .” D’Lil v. Best Western Encina Lodge & Suites, 538 F.3d 1031, 1036 (9th Cir.

26

2008). The case-or-controversy requirement of Article III requires that, in order for a party to

27

have standing to raise a claim: (1) the party invoking federal jurisdiction must have suffered an

28

actual or threatened injury; (2) the injury must be fairly traceable to the defendant’s challenged
6

1

conduct; and (3) the injury must be redressable. Lujan v. Defenders of Wildlife, 504 U.S. 555,

2

560–61 (1992). An actual or threatened injury requires damages to “a legally protected interest

3

which is (a) concrete and particularized and (b) actual or imminent, not conjectural or

4

hypothetical.” Id. (internal quotation marks and citations omitted). In addition, to establish

5

standing to pursue injunctive relief in particular, Plaintiffs “must demonstrate a real and immediate

6

threat of repeated injury.” Chapman, 631 F.3d at 946 (internal quotation marks omitted). “In a

7

class action, standing is satisfied if at least one named plaintiff meets the requirements.” Bates v.

8

United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007).

9

Here, the parties do not appear to dispute, and the Court finds no reason to doubt, that
Plaintiffs’ alleged injuries are fairly traceable to defendant’s challenged conduct and that the

11
United States District Court
Northern District of California

10

alleged injury is redressable by the Court. The standing analysis thus turns on whether Plaintiffs

12

have suffered an injury-in-fact and whether Plaintiffs have demonstrated a likelihood of future

13

injury sufficient to support injunctive relief.

14

Plaintiffs argue that each of the Named Plaintiffs has standing to pursue injunctive relief

15

because “(1) they called HPT hotels and were told by the hotels that although they do provide

16

[wheelchair] inaccessible transportation, they do not provide equivalent [wheelchair] accessible

17

transportation [as required by the ADA]; (2) as a result, the [Named] Plaintiffs are deterred from

18

patronizing those hotels; and (3) [the Named Plaintiffs] will patronize the hotels once the hotels

19

provide equivalent accessible transportation . . . .” ECF No. 60 at 11.

20

“Under the ADA, when a disabled person encounters an accessibility barrier violating its

21

provisions, it is not necessary for standing purposes that the barrier completely preclude the

22

plaintiff from entering or from using a facility in any way.” Chapman, 631 F.3d at 947. Instead,

23

“[o]nce a disabled individual has encountered or become aware of alleged ADA violations that

24

deter his patronage of or otherwise interfere with his access to a place of public accommodation,

25

he has already suffered an injury in fact traceable to the defendant’s conduct and capable of being

26

redressed by the courts, and so he possesses standing under Article III . . . .” Id. (quoting Doran v.

27

7-Eleven, Inc., 524 F.3d 1034, 1042 n.5 (9th Cir. 2008)). Here, each of the Named Plaintiffs’

28

“initial encounter with accessibility barriers”—their being informed by the HPT-owned hotels that
7

1

the hotels did not provide equivalent wheelchair-accessible transportation as the hotels provided to

2

guests who do not use wheelchairs—“constituted an injury-in-fact.” Id. at 947–48.

3

“Although encounters with [] noncompliant barriers related to one’s disability,” such as the

4

Court has found here, are sufficient to demonstrate an injury-in-fact for standing purposes, a

5

plaintiff seeking injunctive relief must additionally demonstrate ‘a sufficient likelihood that he

6

will again be wronged in a similar way.’” Id. at 948 (quoting City of Los Angeles v. Lyons, 461

7

U.S. 95, 111(1983)). In this respect, Plaintiffs argue that they have been deterred from patronizing

8

the HPT-owned hotels-in-question and that they will patronize these hotels if, and when, the

9

alleged ADA violations are remedied. ECF No. 60 at 11; ECF No. 38 ¶¶ 16, 20, 25, 30. Because
the Ninth Circuit has held that “a plaintiff can demonstrate sufficient injury to pursue injunctive

11
United States District Court
Northern District of California

10

relief when [alleged violations of the ADA] deter him from returning to a noncompliant

12

accommodation,” the Court also concludes that the Named Plaintiffs have standing to seek

13

injunctive relief. Chapman, 631 F.3d at 950 (stating that “a plaintiff who is deterred from

14

patronizing a store suffers the ongoing ‘actual injury’ of lack of access to the store”).

15

Defendant argues that Plaintiffs lack standing because “Plaintiffs admit their status as

16

‘testers’ whose sole purpose in attempting to patronize four HPT hotels was to determine whether

17

those hotels provided ADA-compliant shuttle services.” ECF No. 64 at 9; see also ECF No. 64 at

18

12 (“Here, there was and is no organic reason or motive for any of the putative class

19

representatives to visit any of the four hotels that they called.”). However, none of the authority

20

cited by Defendants stands for the proposition that a plaintiff’s status as a “tester”—or the fact that

21

a plaintiff lacks “organic” motives for visiting an accommodation—defeats a finding of standing

22

in ADA Title III cases.

23

While the Ninth Circuit has not addressed this precise issue, the Ninth Circuit has held that

24

“testers fall within the protected group of ‘any person[s]’ that may enforce rights created by §

25

3604(f)(2) [of the Fair Housing Amendments Act (“FHAA”)] when they are violated by

26

discriminatory housing conditions.” Smith v. Pacific Properties and Development Corp., 358 F.3d

27

1097, 1107 (9th Cir. 2004). In so holding, the Ninth Circuit relied primarily on the fact that

28

section 3604(f)(2) of the FHAA prohibited discrimination “against any person in the terms,
8

1

conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities

2

in connection with such dwelling, because of a handicap . . . .” Id. at 1102–04. Similarly, here,

3

the ADA provides that “[n]o individual shall be discriminated against on the basis of disability,”

4

42 U.S.C. § 12182(a) (emphasis added), and “any person who is being subjected to discrimination

5

on the basis of disability” may bring suit, id. § 12188(a)(1) (emphasis added). Moreover, at least

6

two other Circuit Courts have held that a plaintiff’s “tester motive . . . does not foreclose standing

7

for his claim under . . . Title III” of the ADA. Houston v. Marod Supermarkets, Inc., 733 F.3d

8

1323, 1334 (11th Cir. 2013); see also Colorado Cross Disability Coalition v. Abercrombie & Fitch

9

Co., 765 F.3d 1205, 1211 (10th Cir. 2014) (“[A]nyone who has suffered an invasion of the legal
interest protected by Title III may have standing, regardless of his or her motivation in

11
United States District Court
Northern District of California

10

encountering that invasion.”).
The Court thus concludes that the Named Plaintiffs status as “testers” is irrelevant to the

12
13

standing analysis. Because each of the Named Plaintiffs has met the requirements for standing in

14

ADA Title III cases as outlined by the Ninth Circuit in Chapman, the Court concludes that

15

Plaintiffs have established standing.3

16

B.

17

1.

Rule 23(a) requirements
a.

18

Numerosity

Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is

19
20

Class Certification

impracticable.” Fed. R. Civ. P. 23(a)(1). “[C]ourts generally find that the numerosity factor is

21
3

22
23
24
25
26
27
28

The Court finds unpersuasive Defendant’s argument that “[e]ven assuming that the individual
Plaintiffs have standing to sue and seek injunctive relief against the one or two hotels that each
called, that does not mean that they have standing to sue any other hotels” because “Plaintiffs have
adduced no evidence that any of them intend to visit any other HPT hotels.” ECF No. 64 at 15.
As Plaintiffs note, Defendant’s argument “conflates standing with the requirements of Rule 23.”
ECF No. 70 at 9. Defendant cites no authority for the proposition that a Named Plaintiff must
establish standing with respect to each of the violations that the plaintiff seeks to remedy on behalf
of a class. Rather, “[i]n a class action, standing is satisfied if at least one named plaintiff meets the
requirements [for standing with respect to herself].” Bates, 511 F.3d at 985. After a class is
certified, “the ‘plaintiff’ [is] broadened to include the class as a whole, and no longer simply those
named in the complaint.” Armstrong v. Davis, 275 F.3d 849, 870 (9th Cir. 2001). At that point,
“[t]he scope of injunctive relief is dictated by the extent of the violation established” against the
entire class. Lewis v. Casey, 518 U.S. 343, 360 (1996) (quoting Califano v. Yamasaki, 442 U.S.
682, 702 (1979)). Accordingly, the Court rejects Defendant’s argument.
9

1

satisfied if the class comprises 40 or more members.” In re Facebook, Inc., PPC Advertising

2

Litig., 282 F.R.D. 446, 452 (N.D. Cal. 2012). Because Plaintiffs seek only “injunctive and

3

declaratory relief, the numerosity requirement is relaxed and plaintiffs may rely on [ ] reasonable

4

inference[s] arising from plaintiffs’ other evidence that the number of unknown and future

5

members . . . is sufficient to make joinder impracticable.” Arnott v. U.S. Citizenship &

6

Immigration Servs., 290 F.R.D. 579, 586 (C.D. Cal. 2012) (quoting Sueoka v. United States, 101

7

Fed. App’x 649, 653 (9th Cir. 2004) (memorandum disposition)).

8
9

Here, Defendant admits that “roughly 250 guests per year request accessible service” at
just one of the 142 HPT-owned hotels that offer transportation to guests. ECF No. 60 at 17 (citing
ECF No. 58-1 at 38). Given that the number of potential class members that stayed at a single

11
United States District Court
Northern District of California

10

HPT-owned hotel in a single year far exceeds the number of class members that courts typically

12

find satisfies the numerosity requirement, the Court concludes that the numerosity requirement is

13

satisfied here. Moreover, the fact that the proposed class is geographically dispersed across

14

approximately 29 states, ECF No. 58 ¶¶ 4–5, supports a finding of numerosity. See Evans v.

15

Linden Research, Inc., No. 11-cv-01078-DMR, 2012 WL 5877579, at *10 (N.D. Cal. Nov. 20,

16

2012) (“Joinder may be impracticable where a class is geographically dispersed and class

17

members difficult to ascertain or identify.”)

18
19

b.

Commonality

A Rule 23 class is certifiable only if “there are questions of law or fact common to the

20

class.” Fed. R. Civ. P. 23(a)(2). “[F]or purposes of Rule 23(a)(2) [e]ven a single [common]

21

question will do.” Wal-Mart, 131 S. Ct. at 2556 (internal quotation marks omitted). However, the

22

common contention “must be of such a nature that it is capable of classwide resolution—which

23

means that determination of its truth or falsity will resolve an issue that is central to the validity of

24

each one of the claims in one stroke.” Id. at 2551. “‘What matters to class certification . . . is not

25

the raising of common ‘questions’ ‒ even in droves ‒ but rather the capacity of a classwide

26

proceeding to generate common answers apt to drive the resolution of the litigation.’” Id. (quoting

27

Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97,

28

131–32 (2009)). Additionally, “[c]ommonality requires the plaintiff to demonstrate that the class
10

1

members ‘have suffered the same injury,’” which cannot merely be the suffering of “a violation of

2

the same provision of law.” Id. (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157

3

(1982)).

4

Plaintiffs raise several arguments regarding commonality. First, Plaintiffs contend that

5

“HPT’s alleged (and admitted) failure to put in place any practices or policies to ensure

6

compliance with ADA hotel transportation regulations creates an issue common to the class.”

7

ECF No. 60 at 20. That is, Plaintiffs assert that “HPT’s lack of a uniform policy or practice to

8

ensure compliance with the ADA’s accessible transportation requirements at its hotels causes

9

harm to the class as a whole, regardless of differences in the specific transportation services

10

United States District Court
Northern District of California

11
12
13
14
15
16

offered at any particular hotel.” ECF No. 70 at 12.
Defendant responds that because of its status as a REIT, HPT cannot and “does not operate
any of the hotels that it owns.” ECF No. 64 at 22. That is because
[a] REIT may directly hire and pay independent contractors to
provide services not customarily provided by tenants, but the
independent contractor must maintain and operate the facilities
through which the services are rendered. If [these] independent
contractor requirements are not met, then the independent contractor
is disregarded for REIT qualification purposes and the services
provided will be considered as having been performed by the REIT.

17

ECF No. 65-14 (Declaration of James P. de Bree, Jr.) (citing Treasury Regulation § 1.856-

18

4(b)(5)). In other words, if HPT were to “operate” any of its hotels, it would lose the tax

19

advantages of the REIT structure. Hence, HPT’s hotels are operated by “management companies”

20

under long-term management agreements. ECF No. 64 at 22. “[W]ith respect to shuttle and

21

transportation services, the Management Companies (not HPT) are responsible for such

22

operations, including any decision about whether to provide such services.” Id. Defendants thus

23

argue that “[g]iven different Management Companies and in all likelihood different managers at

24

each hotel, there is no commonality in HPT’s conduct or omissions here that is relevant to the

25

disposition of this lawsuit.” Id.

26

There are two parts to Defendant’s argument. The first is that HPTcannot operate the

27

hotels it owns in a manner that provides appropriate, accessible transportation services, because it

28

cannot operate these hotels in any respect; otherwise, it would forfeit the tax benefits of the REIT
11

1

laws. This argument is not compelling. If the law required Defendant to develop and implement a

2

policy of affirmatively providing accessible transportation at all of its properties, the availability

3

(or potential loss) of tax benefits to do otherwise would be no defense. The obligation to avoid

4

discrimination would trump the opportunity to receive a tax-related economic benefit.

5

There is a second part to Defendant’s argument, however, that is more persuasive: that

6

there is no law requiring the owner of a group of hotels, such as HPT, to have a uniform policy

7

across its hotels ensuring compliance with the ADA, and that in the absence of such a law there is

8

no class-wide issue for adjudication. HPT acknowledges that each of its hotels must comply with

9

the ADA, and that HPT—as the hotels’ owner—is liable if an individual hotel violates that
obligation. But HPT argues that there is no requirement that it maintain and enforce a policy

11
United States District Court
Northern District of California

10

regarding accessible transportation at the REIT level, and Plaintiffs cite no authority imposing

12

one. Absent such a requirement, it is unclear how HPT’s admitted lack of a policy regarding the

13

operation of shuttle or transportation services could serve as the “glue” holding together Plaintiff’s

14

claims. Wal-Mart, 131 S. Ct. at 2552. Unlike in other cases finding commonality based on a

15

system-wide policy, it is simply not the case here that there exists a policy that “is unlawful as to

16

every [member of the proposed class] or [] is not.” Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir.

17

2014).

18

Moreover, as in Castenada v. Burger King Corp., 264 F.R.D. 557, 568 (N.D. Cal. 2009),

19

“plaintiffs have failed to make the case that [defendant] has any common offending policies . . .

20

that [resulted in] common accessibility barriers at different [hotels].” The evidence shows that,

21

while many of Defendant’s properties may not be in compliance with the ADA, the manner in

22

which they are potentially out of compliance, and the proof of that non-compliance, differs

23

significantly from property to property. Because Plaintiffs can point to no common offending

24

policy, proving that each of the 142 hotels violated the ADA would require 142 trials within a

25

trial. Id. As the Burger King court noted, in such circumstances, “[e]ach location would vary. . . .

26

Possibly some [locations] would be found to have no violations at all. . . . Litigating [142] in one

27
28
12

1

case would be impossible without a common method of proof.” 4 Id. at 568–69. Such a

2

conclusion strongly counsels against a finding of commonality.
Finally, the cases cited by Plaintiffs in support of their theory of commonality provide little

3
4

assistance. In each of Plaintiffs’ cases, a centralized decision-maker was alleged to have

5

implemented the deficient policies at issue, and in several of the cases the plaintiffs provided

6

concrete evidence of system-wide policies, a showing that Plaintiffs here have failed to make.

7

See, e.g., Gray v. Golden Gate Nat’l Recreational Area, 278 F.R.D. 501, 512 (N.D. Cal. 2011)

8

(“Defendants do not seriously dispute that all of the challenged facilities and barriers are

9

controlled by GGNRA as a centralized decision-maker.”); Parsons, 754 F.3d at 681 (This case
“involves uniform statewide practices created and overseen by two individuals who are charged by

11
United States District Court
Northern District of California

10

law with ultimate responsibility for health care and other conditions of confinement in all ADC

12

facilities, not a grant of discretion to thousands of managers.”); Californians for Disability Rights,

13

Inc. v. Cal. Dep’t of Transp., 249 F.R.D. 334, 346 (N.D. Cal. 2008) (“[T]he common question

14

addressed by this lawsuit is whether and to what extent Caltrans has violated the ADA on a

15

‘systematic basis for many years through the use of improper design guidelines and the failure to

16

ensure compliance with even those deficient guidelines.”) (emphasis added); Hernandez v. Cty. of

17

Monterey, 305 F.R.D. 132, 157 (N.D. Cal. 2015) (finding commonality based on “systemic and

18

centralized policies or practices in a prison system that allegedly expose[d] all inmates in that

19

system to a substantial risk of serious future harm”). By contrast here, Plaintiffs have not argued

20

that HPT serves in any way as a centralized decision-maker that is required by law to implement

21

uniform policies and practices across the hotels that it owns.

22

Second, Plaintiffs argue that they have offered “significant proof” that HPT operates under

23

a general policy or practice of discrimination. ECF No. 60 at 20. Plaintiffs contend that they have

24
25
26
27
28

4

The Named Plaintiffs’ own allegations show that litigating the proposed class’s claims would be
impossible without conducting 142 mini-trials. While some of the hotels contacted by the Named
Plaintiffs are alleged to have not offered any wheelchair-accessible transportation at all, others are
alleged to have offered wheelchair-accessible transportation, but required guests to cover the costs.
ECF No. 38 ¶¶ 14–36. Still other hotels are alleged to have required at least two days advance
notice to arrange wheelchair-accessible transportation for a guest, whereas nondisabled guests
were required to provide less notice. Id. ¶¶ 32–33.
13

1

submitted evidence through their expert that “more than 90% (128) of the 142 HPT hotels that

2

offer transportation services were violating the ADA transportation regulations.”5 Id. at 21.

3

While “commonality is satisfied where [a] lawsuit challenges a system-wide practice or policy that

4

affects all of the putative class members,” Rosas v. Baca, No. 12-cv-00428, 2012 WL 2061694, at

5

*3 (C.D. Cal. June 7, 2012) (quoting Armstrong, 275 F.3d at 868), Plaintiffs admit that HPT has

6

no system-wide policy relating to Plaintiffs’ claims. ECF No. 60 at 21 (“HPT admits that, based

7

on its status as a REIT, it has not even attempted to put in place practices or policies to ensure

8

compliance with ADA transportation regulations.”). As a result, even if Plaintiffs were able to

9

show that 90% of HPT’s hotels violated the ADA, Plaintiffs would only be able to do so by
putting forward evidence regarding each of HPT’s 142 hotels individually. Litigating these 142

11
United States District Court
Northern District of California

10

individual cases within one class action “would be impossible without a common method of

12

proof,” which Plaintiffs do not offer. Burger King, 264 F.R.D. at 569.
Third, Plaintiffs argue that “there are a number of issues central to each class member’s

13
14

claim that can be resolved on a classwide basis, most notably concerning the impact, if any, of 26

15

U.S.C. § 856 and 26 C.F.R. § 1.856-4 -- the REIT tax provisions -- on Defendant’s obligations

16

under the ADA.” ECF No. 60 at 19. According to Plaintiffs, “Defendant argues that the REIT tax

17

provisions do not allow it to operate or manage its hotels and thus prevent it from ensuring that

18

transportation services at those hotels comply with the ADA.” Id. As a result, Plaintiffs claim

19

that each of the proposed class members claims’ requires resolution of the same questions,

20
21
22
23
24
25
26
27
28

5

“Plaintiffs, through their expert Dr. Michael Quinn, have called 138 of the 142 HPT hotels that
provide transportation services to hotel guests.” ECF No. 60 at 6. According to Plaintiffs, these
calls provide evidence that 128 of the HPT-owned hotels violated the ADA. Id. For instance,
“101 hotels stated during at least one call with Dr. Quinn that they do not provide any accessible
transportation services.” Id. at 8. Eight hotels required guests who need wheelchair-accessible
transportation to pay for those services. Id. Another eight hotels required guests who needed
wheel-chair accessible transportation to provide more advanced notice than guests who can use
inaccessible transportation services. Id. Finally, at least eleven hotels “were able to give specific
details about inaccessible transportation services provided by the hotels, but had no idea even what
company to call to find accessible transportations services.” Id. Defendant argues that the
contents of Dr. Quinn’s expert report should not be considered by the Court in making its
determination on class certification and have moved to exclude the expert testimony. ECF No. 67.
The Court need not address Defendant’s motion to exclude and strike expert testimony, however,
because, as explained above, “even if properly considered, [the expert] testimony does nothing to
advance respondents’” claims regarding commonality. Wal-Mart, 131 S. Ct. at 2554.
14

1

including: (1) whether “the REIT tax provisions actually cause a real estate investment trust to

2

lose its favorable tax status simply by modifying its hotel practices and procedures to comply with

3

the ADA”; and (2) “If so, is this a defense to claims brought under the ADA?” Id.

4

As the Court explained earlier, the Court does not believe that the REIT tax provisions

5

provide a defense to a claim of ADA violations. Moreover, Defendant has clarified that “HPT

6

does not contest in this action that an owner [of a hotel, such as HPT,] cannot contract away its

7

ADA obligations to a manager and [the owner] remains jointly and severally liable to disabled

8

plaintiffs” for ADA violations. ECF No. 64 at 24 n.15. That is, Defendant admits that its status as

9

a REIT does not immunize it from liability for ADA violations committed by the hotels that it
owns. Rather, Defendant argues that its status as a REIT simply explains why it has implemented

11
United States District Court
Northern District of California

10

no system-wide policy mandating ADA compliance. ECF No. 64 at 24.

12

The Court concludes that the purportedly common questions posed by Plaintiffs regarding

13

the REIT tax provisions do not support a finding of commonality. Because Defendant admits that

14

it would be liable for ADA violations committed by the hotels it owns, there is no need to answer

15

these questions. Instead, to prevail against Defendant, Plaintiffs would have to show the extent to

16

which each of the allegedly noncompliant HPT-owned hotels violates the ADA.

17

Mere claims that plaintiffs “have all suffered a violation of the same provision of law” do

18

not support a finding of commonality. Wal-Mart, 131 S. Ct. 2551. Because Plaintiffs have not

19

put forward any common question, the truth or falsity of which “will resolve an issue that is

20

central to the validity of each one of the [plaintiffs’] claims in one stroke,” id., the Court concludes

21

that Plaintiffs have failed to establish commonality.

22
23

c.

Typicality

Defendant next challenges whether the proposed class meets the typicality requirement. In

24

certifying a class, courts must find that “the claims or defenses of the representative parties are

25

typical of the claims or defenses of the class.” Fed R. Civ. P. 23(a)(3). “The purpose of the

26

typicality requirement is to assure that the interest of the named representative aligns with the

27

interests of the class.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). “Under

28

the rule’s permissive standards, representative claims are ‘typical’ if they are reasonably
15

1

coextensive with those of absent class members; they need not be substantially identical.”

2

Parsons, 754 F.3d at 685 (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998)).

3

“The test of typicality ‘is whether other members have the same or similar injury, whether the

4

action is based on conduct which is not unique to the Named Plaintiffs, and whether other class

5

members have been injured by the same course of conduct.’” Id. (quoting Hanon, 976 F.2d at

6

508).

7

“The commonality and typicality requirements of Rule 23(a) tend to merge.” Falcon, 457
U.S. 146, 157 n. 13. Here, the Court has already concluded that Plaintiffs have failed to identify

9

any HPT policy across the 142 allegedly ADA-noncompliant hotels, which policy could support a

10

finding of commonality. Because the 142 individual hotels are not alleged to have operated under

11
United States District Court
Northern District of California

8

a common policy, each of the Named Plaintiffs here “have suffered different injuries than those

12

suffered by purported class members who encountered different [ADA violations] at other [HPT-

13

owned hotels] that the named plaintiffs did not visit.” Burger King, 264 F.R.D. 571–72. By

14

contrast, the cases cited by Plaintiff finding typicality where plaintiffs alleged violations of the

15

ADA across many locations each involved an alleged common policy or practice instituted by a

16

single defendant operating each of the accommodations in question. See Arnold v. United Artists

17

Theatre Circuit, Inc., 158 F.R.D. 439, 445 (N.D. Cal. 1994) (Plaintiffs alleged that “defendant has

18

been engaging in a policy and practice of failing to include wheelchair seating [at the more than 70

19

theaters operated by defendant] that complies with the ADAAG requirements.”); Park v. Ralph’s

20

Grocery Co., 254 F.R.D. 112, 120 (C.D. Cal. 2008) (Plaintiffs alleged that “defendant’s

21

inadequate ‘Disabled Patrons’ policy and/or lack of required policies, all result from a centralized

22

decision-making process.”). Plaintiffs’ claims therefore do not satisfy the typicality requirement.

23
24

d.

Adequacy

“The adequacy of representation requirement . . . requires that two questions be addressed:

25

(a) do the Named Plaintiffs and their counsel have any conflicts of interest with other class

26

members and (b) will the Named Plaintiffs and their counsel prosecute the action vigorously on

27

behalf of the class?” In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 462 (9th Cir. 2000). Among

28

other functions, the requirement serves as a way to determine whether “the Named Plaintiff’s
16

1

claim and the class claims are so interrelated that the interests of the class members will be fairly

2

and adequately protected in their absence.” Falcon, 457 U.S. at 158 n.13.

3

Defendant does not specifically argue that Plaintiffs and their counsel fail to meet Rule

4

23(a)(4)’s adequacy requirement. Plaintiffs argue that “[n]either the Plaintiffs nor their counsel

5

has conflicts of interest with the proposed class,” especially given that “[n]one of the [Named

6

Plaintiffs] seeks any monetary damages.” ECF No. 60 at 22. Plaintiffs also assert that the

7

proposed class counsel will vigorously prosecute this action on behalf of the class just as they

8

“have litigated dozens of class actions [before], including numerous class actions under the ADA .

9

. . .” Id. at 23. Plaintiffs further claim that “[t]hey have the resources to litigate this case, as they
have done with numerous similar class actions in the past.” Id. Nothing in the record suggests,

11
United States District Court
Northern District of California

10

and Defendant does not argue, otherwise. Accordingly, Plaintiffs have satisfied the adequacy

12

requirement.
e.

13
14

Ascertainability

“[C]ourts addressing motions to certify classes under Rule 23(b)(3) have held that ‘apart

15

from the explicit requirements of Rule 23(a), the party seeking class certification must

16

demonstrate that an identifiable and ascertainable class exists.’” In re Yahoo Mail Litig., 308

17

F.R.D. 577, 596 (N.D. Cal. 2015) (citing Sethavanish v. ZonePerfect Nutrition Co., No. 12-cv-

18

2907, 2014 WL 580696 (N.D. Cal. Feb. 13, 2014)). Some courts in this district, however, have

19

held that “the ascertainability requirement does not apply to Rule 23(b)(2) actions.” Id. at 597.

20

The Court need not address whether the ascertainability requirement applies to Rule 23(b)(2)

21

actions, such as this one, because Defendants merely argue that Plaintiffs have not “provide[d] a

22

clear class definition under Rule 23(c)(1)(B).’” ECF No. 64 at 28 (citing In re Yahoo Mail Litig.,

23

308 F.R.D. at 597–98).

24

Pursuant to Fed. R. Civ. P. 23(c)(1)(B), “[a]n order that certifies a class action must define

25

the class and the class claims, issues, or defenses. . . .” Plaintiffs propose defining a class

26

consisting of:

27
28

Individuals who use wheelchairs or scooters for mobility who, since
January 15, 2013, have been, or in the future will be, denied the full
and equal enjoyment of transportation services offered to guests at
17

hotels owned and/or operated by Hospitality Properties Trust
because of the lack of equivalent accessible transportation services
at those hotels.

1
2

ECF No. 60 at 14. Defendant argues that “[w]hile it may be easy to define and identify

3
individuals who use wheelchair or scooters, it is a far different story to identify which of these
4
individuals have experienced difficulties with accessible transportation services at HPT hotels or
5
6

when.” EC No. 64 at 29. Defendant further argues that “aside from the three test Plaintiffs, whose
‘difficulties’ were well-engineered by CREEC, Plaintiffs have failed to identify even a single

7
putative class member who has experienced any difficulties with transportation services at a HPT
8
9

hotel.” Id.
Defendant’s arguments are unpersuasive. Defendant fails to cite any case in which similar

10
class definitions were found to be insufficiently clear under Rule 23(c)(1)(B). By contrast, the In
11
United States District Court
Northern District of California

re Yahoo Mail Litig. court found the following proposed class to be sufficiently clear under that
12

Rule: “all persons in the United States who are not Yahoo Mail subscribers and who have sent

13
emails to or received emails from a Yahoo Mail subscriber from October 2, 2011 to the present, or
14
15
16

who will send emails to or receive emails from a Yahoo Mail subscriber in the future.” 308
F.R.D. at 598. The Court concludes that Plaintiffs’ proposed class definition here is no less clear
than the class definition in In re Yahoo Mail Litig. Accordingly, Plaintiffs’ proposed class

17
definition is sufficiently clear under Rule 23(c)(1)(B).
18
19

2.

Rule 23(b)(2)

Rule 23(b)(2) requires that “the party opposing the class has acted or refused to act on

20
grounds that apply generally to the class, so that final injunctive relief or corresponding
21

declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). “Rule

22
23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to
23
each member of the class. It does not authorize class certification when each individual class
24
25

member would be entitled to a different injunction or declaratory judgment against the defendant.”
Wal-Mart, 131 S.Ct. at 2557. “These requirements are unquestionably satisfied when members of

26
a putative class seek uniform injunctive or declaratory relief from policies or practices that are
27

generally applicable to the class as a whole.” Parsons, 754 F.3d at 688 (citing Rodriguez v.

28
18

1

Hayes, 591 F.3d 1105, 1125 (9th Cir. 2011)). “That inquiry does not require an examination of

2

the viability or bases of the class members’ claims for relief, does not require that the issues

3

common to the class satisfy a Rule 23(b)(3)-like predominance test, and does not require a finding

4

that all members of the class have suffered identical injuries.” Id. “The fact that some class

5

members may have suffered no injury or different injuries from the challenged practice does not

6

prevent the class from meeting the requirements of Rule 23(b)(2).” Rodriguez v. Hayes, 591 F.3d

7

1105, 1125 (9th Cir. 2009).
Plaintiffs argue that HPT has “refused to act on grounds that apply generally to the class”

8
9

because “HPT has a practice of not providing equivalent accessible transportation services at
hotels it owns.” ECF No. 60 at 24. Plaintiffs further contend that “[c]ourts routinely certify Rule

11
United States District Court
Northern District of California

10

23(b)(2) classes where defendants fail to implement uniform policies or practices to comply with

12

the law, even though the specific legal violations may be manifested in different ways with respect

13

to different class members or locations.” ECF No. 70 at 10. Plaintiffs suggest that the Court

14

could “issue an injunction requiring HPT to comply with the ADA at its properties.” ECF No. 70

15

at 12.

16

Such an injunction does not constitute “final injunctive relief or corresponding declaratory

17

relief [that] is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). To satisfy

18

Rule 23(b)(2), the proposed injunction must be “more specific than a bare injunction to follow the

19

law.” Parsons, 754 F.3d 657, 689 n. 35 (9th Cir. 2014). However, Plaintiffs have suggested just

20

that. ECF No. 70 at 12. Moreover, as was the case in Burger King:

21
22
23
24
25
26

[F]inal common injunctive relief would only be appropriate as to
those [locations] where there are in fact accessibility violations, and
the relief would even then vary from location to location. . . . [T]he
actual injunctive relief ordered must be individually fashioned for
each location. . . . Because every [location] will have different
violations, any ordered injunctive relief will primarily need to be
tailored [location-by-location].
264 F.R.D. at 569. Accordingly, the Court concludes that “[t]here can be no ‘generally applicable’
relief in this case as to patrons of all [142 hotels].” Id. Plaintiffs have thus failed to establish the

27
requirements of Rule 23(b)(2).
28
19

CONCLUSION

1
2

Plaintiffs have standing to bring their claims under Title III of the ADA against HPT. The

3

Court concludes, however, that Plaintiffs have failed to satisfy the commonality and typicality

4

requirements of Rule 23(a), as well as the requirements of Rule 23(b)(2). Accordingly, the Court

5

denies Plaintiffs’ motion for class certification.

6
7
8
9

The Court sets a further Case Management Conference on June 1, 2016 at 2:00 p.m. A
Joint Case Management Statement is due ten court days beforehand.
IT IS SO ORDERED.
Dated: April 15, 2016

10

United States District Court
Northern District of California

11
12

______________________________________
JON S. TIGAR
United States District Judge

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
20