1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 THERESA BROOKE, Case No. 19-cv-07658-TSH

8 Plaintiff, ORDER RE: DEFENDANT’S MOTION TO DISMISS AND DECLARE 9 v. PLAINTIFF A VEXATIOUS LITIGANT; PLAINTIFF’S MOTION 10 HYATT CORPORATION, FOR SANCTIONS 11 Defendant. Re: Dkt. No. 31

12 13 I. INTRODUCTION 14 Plaintiff Theresa Brooke seeks a court order requiring Defendant Hyatt Corporation to 15 bring its lodging rooms into full compliance with the Americans with Disabilities Act (“ADA”), 16

, et seq. Pending before the Court is Hyatt’s motion to dismiss Brooke’s 17 Second Amended Complaint and declare her a vexatious litigant. ECF No. 31. At the same time, 18 Brooke moves for sanctions against Hyatt’s counsel pursuant to

. ECF No. 33. 19 The Court finds these matters suitable for disposition without oral argument and VACATES the 20 August 6, 2020 hearing. See Civ. L.R. 7-1(b). Having considered the parties’ positions, relevant 21 legal authority, and the record in this case, the Court GRANTS IN PART and DENIES IN 22 PART Hyatt’s motion to dismiss and DENIES Brooke’s motion for sanctions for the following 23 reasons. 24 II. BACKGROUND 25 A. Factual Background 26 Brooke, a resident of Arizona, is a disabled woman confined to a wheelchair. Sec. Am. 27 Compl. ¶ 1, ECF No. 29. She alleges she frequently travels to California for “purposes of leisure 1 if various hotels across the Country comply with disability access laws.”

. In anticipation 2 of a trip to California, Brooke went online to Hyatt’s website to rent a room at the Hyatt Regency 3 San Francisco, located at 5 Embarcadero Center.

. She sought any of its “Suites 4 offered at the hotel, whether that be the Presidential Suite, Luxury Suite, Balcony Suite or Bay 5 View Studio Suite, all of which offer more living space, better views and more luxurious 6 amenities than Defendant’s standard rooms . . ..”

. However, she alleges she was deterred 7 from renting a suite because Hyatt “does not make any of this [sic] Suites ADA accessible. The 8 sole ADA accessible rooms offered by Defendant are the standard rooms.”

She alleges she 9 has actual knowledge of the barriers at the hotel because the suites “do not offer wider doorway 10 entries to the room or within the room and do not offer, for example, accessible bathrooms such as 11 handlebars for the toilet or accessible showers or tubs.”

. These barriers affect her 12 because she has only one leg and requires a wheelchair to move around.

. 13 Brooke alleges she and her husband took a trip to the Bay Area in early March 2020 and 14 she anticipates re-visiting the Bay Area “multiple times over the next year for purposes of further 15 ADA testing, leisure travel and attending Court-related conferences, hearings and the like.”

¶ 16 11. During her most recent trip, she did not visit the hotel because Hyatt “has not remediated, and 17 Plaintiff therefore remains deterred. To visit the hotel during her trip would have been futile.”

18 B. Procedural Background 19 Brooke filed her initial complaint on November 20, 2019, alleging violations under the 20 ADA,

(a), 12182(b)(2)(A)(iv) and the 2010 ADA Standards for Accessible 21 Design1 (“2010 ADA Standards”), as well as the California Unruh Civil Rights Act (“Unruh 22 Act”), California Civil Code §§ 51, 52. ECF No. 1. Hyatt moved to dismiss (ECF No. 11), but 23 the Court denied its motion without prejudice based on Brooke’s stated intent to file amended 24 complaint (ECF No. 21). 25 Brooke filed a First Amended Complaint on April 13, 2020, alleging the same causes of 26 action. ECF No. 23. Hyatt again moved to dismiss, arguing Brooke does not have standing to 27 1 bring her claims because she cannot show Hyatt hindered her full use and enjoyment of the hotel, 2 she did not allege a genuine intent to return, and she did not allege a genuine deterrence because 3 she did not encounter or have knowledge of any barriers. ECF No. 24. On May 13, 2020, the 4 Court granted Hyatt’s motion with leave to amend, finding Brooke failed to allege any facts to 5 support her conclusory statements that she encountered a barrier, failed to explain how that barrier 6 violates the ADA, and failed to allege whether it relates to her particular disability or interferes 7 with her use or enjoyment of the hotel. ECF No. 28. 8 Brooke filed the operative Second Amended Complaint on May 14, 2020, adding the 9 following allegations:

10 The barrier at issue is that the Suites offered at the hotel are not accessible because they do not offer wider doorway entries to the 11 room or within the room and do not offer, for example, accessible bathrooms such as handlebars for the toilet or accessible showers or 12 tubs. This barrier affects Plaintiff specifically because she has only one leg and requires a wheelchair to move around. The Suites at 13 Defendant’s hotel do not allow her to access these rooms because they do not offer the accessibility features identified here and above in 14 Paragraph 9. For example, Plaintiff cannot even enter a Suite because the doorways are not wide enough for her to enter them due to the 15 fact that she is in a wheelchair. She cannot move around within the room because the furniture is not sufficiently spread out to allow her 16 to maneuver with her wheelchair. She cannot use the toilet or shower. 17 Sec. Am. Compl. ¶ 13. 18 Hyatt filed the present motion to dismiss on May 28, 2020, arguing Brooke lacks standing 19 under the ADA because she fails to adequately allege any injury-in-fact or her intent to return to 20 the hotel. Def.’s Mot. at 6. It also argues she has not sufficiently pled that she was deterred from 21 visiting the hotel based on actual knowledge of illegal barriers. Id. Hyatt further argues Brooke 22 fails to state a claim under the ADA because she focuses on her use of the website and “identifies 23 only hypothetical, not actual, barriers,” thereby assuming that the suites she wanted were not ADA 24 compliant. Id. at 14. It maintains the ADA does not require it to offer an accessible and non- 25 accessible version of the same room type, and Brooke does not allege that it does not offer ADA 26 accessible rooms or that such rooms are not comparable to the suites she seeks. Id. at 15. 27 As to Brooke’s Unruh Act claim, Hyatt argues she lacks standing because the Act only 1 Arizona. Id. at 15-16. 2 Hyatt also requests the Court declare Brooke a vexatious litigant and require her to obtain 3 leave of court before filing any other future claims under the ADA in any California Court. Id. at 4 20-23. Finally, Hyatt argues that, regardless of whether the Court declares Brooke a vexatious 5 litigant, if it allows her claims to proceed, it should require her to post a bond under California 6 Code of Civil Procedure section 1030 because she is an out-of-state resident and Hyatt has 7 demonstrated a reasonable possibility of prevailing in this action. 8 On May 31, 2020, Brooke filed a motion for sanctions, seeking $3,000 levied against 9 Hyatt’s counsel, Tracy A. Warren, J. Patrick Allen and Rick A Waltman, on the grounds that 10 “counsel has relentlessly sought to have the Court declare Plaintiff a vexatious litigant, but in so 11 doing, has lied to the Court and two other federal court judges, has attempted to mislead the Court, 12 omitted salient information, and most importantly, has not provided any evidence of a single case 13 that is patently without merit or any decisions on the merits, which are required for a litigant to be 14 determined to be vexatious.” Pl.’s Mot. at 1-2. 15 III. MOTION TO DISMISS 16 A. Legal Standard 17 1. Rule 12(b)(1) 18 Rule 12(b)1) allows a party to challenge a federal court’s subject matter jurisdiction. As 19 the party invoking subject matter jurisdiction of the federal court, the plaintiff bears the burden of 20 establishing that the court has the requisite subject matter jurisdiction to grant the relief requested. 21 Kokkonen v. Guardian Life Ins. Co. of Am.,

(1994). A complaint will be 22 dismissed if, looking at the complaint as a whole, it appears to lack federal jurisdiction either 23 “facially” or “factually.” Thornhill Publ’g Co., Inc. v. Gen. Tel. & Elecs. Corp.,

, 24 733 (9th Cir. 1979); Safe Air for Everyone v. Meyer,

(9th Cir. 2004) (“A 25 Rule 12(b)(1) jurisdictional attack may be facial or factual.”). 26 A challenge to subject matter jurisdiction is a factual attack where the moving party relies 27 on extrinsic evidence and does not assert a lack of subject matter jurisdiction solely based on the 1 920, 924 n.5 (11th Cir. 2003)). “In resolving a factual attack on subject matter jurisdiction, the 2 district court may review evidence beyond the complaint without converting the motion to dismiss 3 into a motion for summary judgment.”

(citing Savage v. Glendale Union High Sch.,

, 1039 n.2 (9th Cir. 2003)). If the moving party converts its motion to dismiss into a factual 5 motion by submitting affidavits, the opposing party must then also present affidavits or other 6 evidence to meet its burden for satisfying subject matter jurisdiction.

7 2. Rule 12(b)(6) 8 A complaint must contain a “short and plain statement of the claim showing that the 9 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, to survive a Rule 12(b)(6) motion to 10 dismiss, a complaint must plead “enough facts to state a claim to relief that is plausible on its 11 face.” Bell Atl. Corp. v. Twombly,

(2007). Plausibility does not mean 12 probability, but it requires “more than a sheer possibility that a defendant has acted unlawfully.” 13 Ashcroft v. Iqbal,

(2009). A complaint must therefore provide a defendant with 14 “fair notice” of the claims against it and the grounds for relief. Twombly,

15 (quotations and citation omitted); Fed. R. Civ. P. 8(a)(2) (A complaint must contain a “short and 16 plain statement of the claim showing that the pleader is entitled to relief.”). In considering a 17 motion to dismiss, the court accepts factual allegations in the complaint as true and construes the 18 pleadings in the light most favorable to the nonmoving party. Manzarek v. St. Paul Fire & Marine 19 Ins. Co.,

(9th Cir. 2008).; Erickson v. Pardus,

(2007). 20 However, “the tenet that a court must accept a complaint’s allegations as true is inapplicable to 21 threadbare recitals of a cause of action’s elements, supported by mere conclusory statements.” 22 Iqbal,

. 23 If a Rule 12(b)(6) motion is granted, the “court should grant leave to amend even if no 24 request to amend the pleading was made, unless it determines that the pleading could not possibly 25 be cured by the allegation of other facts.” Lopez v. Smith,

(9th Cir. 2000) (en 26 banc) (citations and quotations omitted). However, a court “may exercise its discretion to deny 27 leave to amend due to ‘undue delay, bad faith or dilatory motive on part of the movant, repeated 1 party . . ., [and] futility of amendment.’” Carvalho v. Equifax Info. Servs., LLC,

, 2 89293 (9th Cir. 2010) (alterations in original) (quoting Foman v. Davis,

, 182 3 (1962)). 4 B. Discussion 5 1. ADA Claim 6 The ADA provides that “[n]o individual shall be discriminated against on the basis of 7 disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, 8 or accommodations of any place of public accommodation.”

(a). To prevail, 9 the plaintiff must show that “(1) she is disabled within the meaning of the ADA; (2) the defendant 10 is a private entity that owns, leases, or operates a place of public accommodation; and (3) the 11 plaintiff was denied public accommodations by the defendant because of her disability.” Molski v. 12 M.J. Cable, Inc.,

(9th Cir. 2007). 13 “[T]o satisfy Article III’s standing requirements, a plaintiff must show (1) it has suffered 14 an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural 15 or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) 16 it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable 17 decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,

, 180-81 18 (2000) (citing Lujan v. Defenders of Wildlife,

(1992)). Here, the second and 19 third elements are not at issue; the only question is whether Brooke has shown an injury-in-fact. 20 There are two ways to demonstrate standing under the ADA. A plaintiff must show that 21 she has either suffered an “injury-in-fact coupled with an intent to return,” or alternatively is 22 deterred from returning to the premises. Chapman v. Pier 1 Imports (U.S.), Inc.,

, 23 944 (9th Cir. 2011). Here, the Court finds Brooke has sufficiently plead injury-in-fact and an 24 intent to return. 25 a. Injury in Fact 26 Hyatt argues Brooke cannot establish injury in fact because she does not allege she 27 personally encountered any barriers to her access at the hotel. Def.’s Mot. at 7. It notes she does 1 at the hotel that pose a real and immediate threat to her.

While Brooke’s ADA claim is 2 premised on alleged barriers that she encountered online while attempting to book specific suites 3 at the hotel, Hyatt maintains “[t]he only barriers she attempts to connect to her disability are 4 purely hypothetical —Plaintiff offers no factual basis whatsoever to indicate any actual barrier 5 exists or that she knew of the same.” Id. at 7-8. It argues Brooke cannot allege she encountered 6 the “hypothetical” barriers she assumed exist because she does not allege she called to discuss the 7 purported barriers or comparable rooms, otherwise communicated with Hyatt, or in any way 8 confirmed that any barrier exists. Id. at 8. 9 An injury in fact must be concrete and particularized, and actual or imminent. Friends of 10 the Earth,

. An injury is particularized when it affects the plaintiff “in a personal 11 and individual way.” Lujan,

n.1. While a plaintiff need not have a “personal 12 encounter” with a barrier to access as a requirement for standing, she must still allege “actual 13 knowledge of illegal barriers at a public accommodation to which [she] desires access.” Civil 14 Rights Educ. & Enf’t Ctr. v. Hosp. Properties Tr.,

(9th Cir. 2017) (“It 15 is the plaintiff’s ‘actual knowledge’ of a barrier, rather than the source of that knowledge, that is 16 determinative.”) (quoting Pickern v. Holiday Quality Foods Inc.,

(9th Cir. 17 2002); Doran v. 7-Eleven, Inc.,

, 1042 n.5 (9th Cir. 2008) (“Once a disabled 18 individual has encountered or become aware of alleged ADA violations that deter his patronage of 19 or otherwise interfere with his access to a place of public accommodation, he has already suffered 20 an injury in fact traceable to the defendant’s conduct and capable of being redressed by the 21 courts.”). 22 Brooke’s ADA claim is premised on two grounds: (1) Hyatt does not make any of its suites 23 ADA accessible and she seeks equality in the selection of the same type of lodging rooms that are 24 available to able-bodied persons; and (2) due to her disability, she requires the use of lodging 25 rooms that are accessible to her, but she is deterred from lodging at the hotel due to her knowledge 26 of “the barrier” there. Sec. Am. Compl. ¶¶ 9, 18. 27 As to the type of room, Section 224.5 of the 2010 ADA Standards requires that rooms with 1 choices of types of guest rooms, number of beds, and other amenities comparable to the choices 2 provided to other guests.” 36 C.F.R. § Pt. 1191, App. B. A hotel does not have to offer the same 3 room types to disabled and non-disabled visitors, but the accessible rooms must be “dispersed 4 among the various classes of guest rooms” and “provide choices of types of guest rooms, number 5 of beds, and other amenities comparable to the choices provided to other guests.” Id. As the 6 Court previously found, Brooke sufficiently articulates that the types of guest rooms available at 7 Hyatt’s hotel are not comparable and do not satisfy the requirements of Section 224.5 because she 8 alleges that none of its suites are ADA accessible, the sole ADA accessible rooms are the standard 9 rooms, and she is deterred from lodging at the hotel until the lack of equal room choices is cured. 10 Brooke v. Hyatt Corp.,

, at *4 (N.D. Cal. May 13, 2020); see also Brooke v. 11 AJU Hotel Silicon Valley LLC,

, at *1 (N.D. Cal. Dec. 23, 2019) (denying 12 motion to dismiss Brooke’s ADA claim where her complaint included allegations that the 13 accessible rooms available at the hotel were not “comparable” to non-accessible rooms). 14 Unlike her First Amended Complaint, Brooke also alleges what “barriers” exist at the hotel 15 and “how [her] disability was affected by them.” See Hyatt Corp.,

, at *4 16 (granting leave to amend for Brooke to allege what barriers exist); see also Chapman,

954 (directing district court to dismiss complaint for lack of standing, where plaintiff alleged he 18 “encountered architectural barriers” at defendant’s store but “never allege[d] what those barriers 19 were”). Brooke alleges that, due to her disability, she requires the use of lodging rooms that are 20 accessible to her and have the standard accessibility features such as roll-in showers, adequate 21 spacing the furniture in the lodging room, grab bars surrounding the toilet, and other commonly- 22 accepted accessibility features. Sec. Am. Compl. ¶ 9. She further alleges that the barriers at issue 23 are that the hotel’s suites do not offer wider doorway entries to the room or within the room and 24 do not offer accessible bathrooms such as handlebars for the toilet or accessible showers or tubs. 25 Id. ¶ 13. She alleges these barriers affect her because she has only one leg and requires a 26 wheelchair to move around, she cannot enter a suite because the doorways are not wide enough for 27 her to enter them due to the fact that she is in a wheelchair, she cannot move around within the 1 wheelchair, and she cannot use the toilet or shower. Id. Taking these factual allegations as true, 2 the Court finds Brooke adequately pleads how Hyatt’s hotel alleged non-compliance with the 3 ADA is related to her disability. 4 Finally, Brooke alleges she has actual knowledge of the barriers. ADA regulations require 5 “places of lodging” to “[i]dentify and describe accessible features in the hotels and guest rooms 6 offered through its reservation service in enough detail to reasonably permit individuals with 7 disabilities to assess independently whether a given hotel or guest room meets his or her 8 accessibility needs.”

(e)(1)(ii); see Fortyune v. Am. Multi-Cinema, Inc., 364

, 1084 (9th Cir. 2004) (public accommodations responsible for “ADA and its 10 implementing regulations”). Brooke alleges she reviewed Hyatt’s website and the hotel fails to 11 meet her accessibility needs. This is enough to survive Hyatt’s motion to dismiss. See Strojnik v. 12 574 Escuela, LLC,

, at *5 (N.D. Cal. Mar. 31, 2020) (denying motion to dismiss 13 where plaintiff alleged he reviewed the Monte Carlo’s reservation website and that it failed to 14 meet the requirements). 15 b. Intent to Return 16 Brooke must also allege an intent to return. Chapman,

; Civil Rights Educ. 17 & Enf’t Ctr.,

. Where, as here, “the public accommodation being sued is far from 18 the plaintiff’s home,” the Ninth Circuit has found an “actual or imminent injury sufficient to 19 establish standing where a plaintiff demonstrates an intent to return to the geographic area where 20 the accommodation is located and a desire to visit the accommodation if it were made accessible.” 21 D’Lil v. Best W. Encina Lodge & Suites,

(9th Cir. 2008). However, “[a] 22 general intent to return to a public accommodation is ‘insufficient to confer standing in an action 23 for injunctive relief.’” Strojnik v. Four Sisters Inns, Inc.,

, at *4 (C.D. Cal. Dec. 24 9, 2019) (quoting Molski v. Kahn Winery,

(C.D. Cal. 2005)). 25 Accordingly, a plaintiff “lacks standing if he is indifferent to returning . . . or if his alleged intent 26 to return is not genuine.” Chapman,

. 27 Courts generally look to four factors to determine whether a plaintiff has pleaded an intent 1 plaintiff’s past patronage of defendant’s business, (3) the definitiveness of plaintiff’s plans to 2 return, and (4) the plaintiff’s frequency of travel near defendant.” Antonio v. Yi,

13603781, at *2 (C.D. Cal. Mar. 4, 2015) (collecting cases). 4 Regarding the first factor, generally, “if the plaintiff resides over one hundred miles away 5 from the place of public accommodation, ‘the distance subverts a professed intent to return.’” 6 Four Sisters Inns,

, at *4 (quoting Antonio,

, at *2). 7 “However, this factor is less relevant when applied to hotels, because it is generally the purpose of 8 hotels to provide a place to stay away from someone’s residence.

(citation and internal 9 quotations omitted). Accordingly, this factor is less relevant because the place of accommodation 10 at issue is a hotel. 11 As to the second factor, Brooke does not allege that she previously visited the hotel, so this 12 factor does not support an intent to return. See

(“Plaintiff does not allege that he previously 13 visited the Hotel, so the second factor does not support an intent to return.”); Antonio,

13603781, at *2 (“There is no evidence that Plaintiff ever visited [the defendant’s business], which 15 suggests Plaintiff lacked the requisite intent to return.”). 16 As for the third factor, Brooke alleges she intends to visit the Bay Area “later this year” 17 and she will visit the hotel if Hyatt corrects the barrier prior to her trip. Sec. Am. Compl. ¶ 12. 18 However, “[s]uch ‘some day’ intentions—without any description of concrete plans, or indeed 19 even any specification of when the some day will be—do not support a finding” of an intent to 20 return. Lujan,

(discussing when an intent to return can demonstrate actual or 21 imminent injury sufficient for standing); see also Four Sisters Inns,

, at *4 22 (finding plaintiff’s allegations that he “intends to visit Defendant’s Hotel at a specific time when 23 the Defendant’s noncompliant Hotel becomes fully compliant” insufficient to establish an intent to 24 return because he “does not indicate when he planned to visit the Hotel for the trip at issue, let 25 alone when he might plan to return, other than some ‘specific time’ in the future.”); Brooke v. 26 Choice Hotels Int’l, Inc.,

, at *3 (S.D. Cal. May 5, 2016) (“General statements 27 regarding Plaintiff’s intent to travel to an area . . . are insufficient to allege an ‘actual and 1 Finally, Brooke alleges she travels to California “countless times” and plans to visit the 2 Bay Area “over the next several months for purposes of travel, testing ADA compliance and of 3 course for Court-related hearings and conferences and site inspections.” Sec. Am. Compl. ¶ 8. 4 Therefore, this factor supports an intent to return. 5 In sum, while Brooke does not allege that she previously visited this particular hotel or that 6 she has any concrete plans to visit on a specific date in the future, she does allege that she 7 frequently travels to the Bay Area and will continue to do so for both case- and leisure-related 8 purposes. She also alleges that she will visit the hotel if Hyatt corrects the barrier. Taking these 9 allegations as true, the Court finds Brooke sufficiently alleges a genuine intent to return. 10 c. Summary 11 The Court finds Brooke has established standing and alleges a plausible claim under the 12 ADA. Accordingly, the Court DENIES Hyatt’s motion to dismiss her ADA claim. 13 2. Unruh Act 14 In its previous order, the Court held that Brooke’s First Amended Complaint failed to state 15 a claim under the Unruh Act because it was predicated on her ADA claim, which the Court 16 dismissed with leave to amend. However, because the Court finds that Brooke has stated an ADA 17 claim in her Second Amended Complaint, the Court now turns to the merits of her Unruh Act 18 claim and finds it must be dismissed for failure to state a claim. 19 California’s civil rights act is limited to “persons within the jurisdiction of this state.” Cal. 20 Civ. Code § 51(b). The California Supreme Court has interpreted the phrase “within the 21 jurisdiction of this state” in accord with its plain meaning as “within the state.” Munson v. Del 22 Taco, Inc.,

, 668 n.4 (2009). Accordingly, as Brooke does not claim she was in 23 California when she viewed the reservation website at issue, and she has now had three attempts to 24 plead this cause of action, the Court finds her Unruh Act claim is not plausible. See 574 Escuela, 25

, at *5 (dismissing Unruh Act claim brought by resident of Arizona concerning 26 alleged discrimination by website operator located in California); Ebeid v. Facebook, Inc., 2019

, at *7 (N.D. Cal. May 9, 2019) (same). Accordingly, the Court GRANTS Hyatt’s 1 3. Vexatious Litigant 2 Hyatt argues Brooke is a vexatious litigant and should be subject to a pre-filing order 3 limiting her ability to file any complaint asserting ADA claims. Def.’s Mot. at 20-22. However, 4 for the same reasons stated in its previous order, the Court finds the record presently before it is 5 insufficient to support a vexatious litigant order and therefore DENIES Hyatt’s request. See 6 Brooke v. Hyatt Corp.,

, at *5 (finding the record insufficient to support a 7 vexatious litigant order because none of the recent cases filed by Brooke in this District have been 8 resolved on its merits and, although some have been dismissed, no finding of frivolousness or 9 harassment was made in connection with any such dismissal). 10 4. Bond 11 Finally, Hyatt requests the Court order Brooke to post a $100,000 bond for its attorney’s 12 fees through trial, arguing that it is likely to prevail in this action. Def.’s Mot. at 23-25. Although 13 the Federal Rules of Civil Procedure do not address security bonds, federal district courts “have 14 inherent power to require plaintiffs to post security for costs.” Simulnet E. Assocs. v. Ramada 15 Hotel Operating Co.,

, 574 (9th Cir. 1994). “‘Typically federal courts, either by rule 16 or by case-to-case determination, follow the forum state’s practice with regard to security for 17 costs, as they did prior to the federal rules; this is especially common when a non-resident party is 18 involved.’” Id. (quoting 10 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2nd § 19 2671). California requires a court to order a security bond when a defendant shows that (1) the 20 plaintiff resides out of state and (2) there is a reasonable possibility that the defendant will prevail 21 on the merits. Cal. Code Civ. Proc. § 1030(a)-(c). 22 Following section 1030’s requirements, and looking to the underlying claims, the Court 23 finds it cannot require a security bond for costs and attorney’s fees. Although there is no dispute 24 that Brooke resides in Arizona, Hyatt must still show a reasonable possibility that it will prevail on 25 the merits and that Brooke’s ADA claim is frivolous. Pittman ex rel. L.P. v. Avish P’ship,

App’x 591, 593 (9th Cir. 2013) (citing Brown v. Lucky Stores, Inc.,

(9th Cir. 27 2001) (holding that fees and costs can be awarded under the ADA only if the plaintiff’s claims 1 motion to dismiss, it is not prepared to find at this time that Brooke’s claims are frivolous or that 2 Hyatt will prevail on the merits. Accordingly, Hyatt’s request for a bond is DENIED. 3 IV. MOTION FOR SANCTIONS 4 Brooke seeks $3,000.00 in sanctions under

for fees incurred in drafting 5 her motion for sanctions, responding to the first two vexatious litigant motions, and researching 6 the third vexatious litigation motion. Pl.’s Mot. at 14. She raises several arguments against 7 Hyatt’s counsel in her motion, but the Court finds that none of them rise to the level of 8 sanctionable conduct. 9 “Any attorney . . . who multiplies the proceedings in any case unreasonably and 10 vexatiously may be required by the court to satisfy personally the excess costs, expenses, and 11 attorneys’ fees reasonable incurred because of such conduct.”

. A court may 12 award sanctions under section 1927 if it finds recklessness or subjective bad faith, which may be 13 found where an attorney knowingly or recklessly raises a frivolous argument or argues a 14 meritorious claim for the purpose of harassing the opposing party. B.K.B. v. Maui Police Dep’t, 15

(9th Cir. 2002) (concluding that district court’s finding of recklessness plus 16 knowledge was sufficient to justify the imposition of sanctions under section 1927). The Ninth 17 Circuit instructs courts to be reluctant in imposing sanctions, “especially errors in papers filed 18 before an opportunity for discovery.” Greenberg v. Sala,

(9th Cir. 1987). “The 19 court is expected to avoid using the wisdom of hindsight and should test the signer’s conduct by 20 inquiring what was reasonable to believe at the time the pleading . . . was submitted.”

21 In her motion, Brooke argues Hyatt’s counsel “makes the unequivocally false statement to 22 this Court that Plaintiff filed many cases in Hawaii, Oregon, Washington, New Mexico, Idaho, 23 Texas, and Puerto Rico,” when she has in fact “never filed a single lawsuit” in any of those states. 24 Pl.’s Mot. at 6. However, Hyatt’s counsel explains the inclusion of these jurisdictions was not the 25 result of an intention to mislead but was instead an inadvertent clerical error committed by 26 counsel’s staff. Def.’s Opp’n at 2 n.2. They explain that, around the same time Hyatt filed its 27 motion to dismiss in this action, counsel also prepared and filed a motion to dismiss against 1 it appears its staff included the same jurisdictional criteria for Brooke as it did for Brooke’s 2 counsel’s father in the other action.

As a result, the description of the search counsel’s staff 3 conducted in PACER for ADA cases filed by Brooke in federal courts included Hawaii, 4 California, Oregon, Washington, New Mexico, Idaho, Texas, and Puerto Rico. Id. at 2. Counsel 5 notes it did not raise any argument that Brooke had in fact filed cases in those jurisdictions, and 6 Brooke cannot point to any reference to these jurisdictions in Hyatt’s arguments. Id. at 2. 7 Counsel admits the description was made in error but argues “[t]he overly specific search terms 8 can barely be considered an error, let alone a ‘lie.’” Id. As the inclusion of these jurisdictions as 9 part of the search terms appears to be the result of clerical error and not made in bad faith, and 10 Hyatt did not argue that Brooke had filed in these additional jurisdictions, the Court finds 11 sanctions are unwarranted. 12 Brooke also argues Hyatt’s counsel has intentionally attempted to mislead the Court by 13 omitting salient information in its argument regarding the number of cases she has filed, including 14 that many of these cases were filed in other districts, such as the Eastern and Central Districts of 15 California. Pl.’s Mot. at 8-9. However, Hyatt took issue with the number and similarity of 16 Brooke’s cases, not where they were filed. Def.’s Mot. at 22. Regardless, Brooke has failed to 17 show that Hyatt did not raise this argument in good faith, and the Court must therefore be reluctant 18 to issue sanctions in these circumstances. 19 Finally, Brooke argues that Hyatt’s three vexatious litigant motions have no basis in fact or 20 law. Pl.’s Mot. at 2. In addition to the three vexatious litigant motions in this case, Brooke notes 21 Hyatt has filed the same motion in two other similar lawsuits alleging ADA claims against Hyatt 22 hotels in this District. See Brooke v. IA Lodging Santa Clara LLC, 5:19-cv-7558-NC; Brooke v. 23 Grand Hyatt SF LLC, 3:19-cv-7630-MMC. The Court in this case and Judge Chesney in Grand 24 Hyatt have both ruled that Brooke is not a vexatious litigant. Hyatt’s motion is currently pending 25 in IA Lodging. Brooke argues that the only difference in Hyatt’s renewed motion is that it “has 26 added a few more cases, but the added cases are in the same category as the original record – no 27 decisions on the merits and none shown to be frivolous or harassing.” Pl.’s Mot. at 6. Hyatt’s 1 good faith based on Plaintiff's continued disregard for this Court’s and other courts’ clear holdings 2 about her pleadings. This Court and others have put Plaintiff on notice of the errors in pleadings 3 such as her SAC (and the FAC, and the initial Complaint).” Def.’s Opp’n at 4. It argues Brooke 4 || “still does not allege what ‘barriers’ exist at the defendant’s place of business and how she ‘was 5 affected by them,’” and “[s]he continues to state only her assumptions about barriers.” Jd. at 5. 6 || As discussed above, the Court finds that Brooke has now plead a plausible ADA claim. However, 7 || that does not mean that Hyatt’s argument was frivolous, and there is no indication Hyatt made its 8 argument with recklessness or subjective bad faith. The Court is unpersuaded that sanctions are 9 || warranted. 10 Vv. CONCLUSION 11 For the reasons stated above, Hyatt’s motion is GRANTED as to Brooke’s Unruh Act 12 || clam WITHOUT LEAVE TO AMEND and DENIED in all other respects, and Brooke’s 13 motion for sanctions in DENIED. The parties shall meet and confer and file a status report by 14 || July 7, 2020 regarding the schedule under General Order 56. 3 15 IT IS SO ORDERED.

17 Dated: June 23, 2020 TAA. Lj, THOMAS S. HIXSON 19 United States Magistrate Judge 20 21 22 23 24 25 26 27 28