1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 THERESA BROOKE Case No.: 20cv1901-LAB (KSC)

12 Plaintiff, ORDER REQUIRING 13 v. CORRECTION TO RESPONSE TO ORDER TO SHOW CAUSE 14 RED LION HOTELS

CORPORATION 15 Defendant. 16

17 Plaintiff Theresa Brooke alleges that in mid-September of this year, she and 18 her husband traveled from Arizona to San Diego and visited the DoubleTree Hotel 19 in Mission Valley, San Diego in September, for leisure purposes. When she 20 arrived, she says she found the drive-up area non-ADA compliant and could not 21 enter the hotel lobby. She sought an injunction to remedy this, saying she intended 22 to return for more leisure travel in December. 23 At the time Brooke attempted to stay at the DoubleTree, California Governor 24 Newsom’s March 19, 2020 stay-at-home order was still in place, in modified form. 25 In an effort to contain the continuing COVID-19 outbreak, the public were directed 26 to stay at home, except when engaged in essential activities. While many activities 27 that might be thought of as recreational were still considered essential, leisure 28 travel by out-of-state residents was never encouraged or deemed essential. 1 Regardless of the degree of enforcement or enforceability of that order, it is clear 2 that the kind of travel Brooke and her husband were engaged in during September 3 was contrary to public policy. Public policy and the public interest are strong factors 4 in assessing the availability of equitable relief. Winter v. Natural Resources 5 Defense Council, Inc.,

, 32–33 (2008) (district court abuses its discretion 6 by issuing an injunction contrary to the public interest). 7 To be clear, the Court is not questioning that the accessibility of public 8 accommodations is in the public interest, or that removing a barrier to accessibility 9 could legitimately benefit someone else. The problem lies with recognizing 10 Brooke’s interest in the travel she engaged in, and wants to engage in in the future. 11 Namely, she came from Arizona, a state noted for its high COVID-19 infection 12 rates, to California for admittedly non-essential reasons, contrary to Governor 13 Newsom’s directive. She asks the Court to grant injunctive relief to enable her to 14 do this again. While others might also benefit from an injunction, it is the deprivation 15 of Brooke’s own interest that give rises to standing, which in turn allows the Court 16 to exercise subject matter jurisdiction over her ADA claim. See Chapman v. Pier 1 17 Imports (U.S.) Inc.,

, 953–54 (9th Cir. 2011) (en banc). 18 On December 3, the issue gained vitality when California’s Acting State 19 Health Officer issued a regional Stay at Home order directing hotels in California 20 not to accept or honor out-of-state reservations for non-essential travel, unless the 21 length of the reservation allowed for the hotel guest to quarantine herself during 22 the required period, and unless the guest actually would quarantine herself for the 23 required period. This order is effective for at least three weeks, and continues 24 indefinitely until certain health criteria are met. At present, there is no way of 25 knowing when those criteria will be met, and there is no reason to believe it will 26 end promptly at the end of three weeks.The Court need not examine the question 27 of whether California has the authority to ban vacationers from COVID-19 28 hotspots. The fact is, California — in spite of its history as destination for many out- 1 of-state tourists — has decided that containing the COVID-19 pandemic outweighs 2 its economic interest, and is actively attempting to stop the kind of travel that 3 Brooke has engaged in and wants to engage in again. 4 The Court, carrying out its obligation to raise and address jurisdictional 5 issues whenever a question arises, ordered Brooke to show why the Court had 6 jurisdiction over her Americans with Disabilities Act claim. See Chapman v. Pier 1 7 Imports (U.S.) Inc.,

(9th Cir. 2011) (en banc). Within three days, 8 Brooke’s attorney Peter Strojnik filed a response in the form of a declaration under 9 penalty of perjury signed by Brooke, but not by Strojnik. (Docket no. 11 (“Decl.”).) 10 As Brooke’s counsel of record, Strojnik should have signed the reply himself and 11 should not have set forth legal arguments in the declaration, as if Brooke were 12 making the arguments on her own behalf. See Fed. R. Civ. P. 11(a); Civil Local 13 Rule 83.3(f)(1). Her declaration could have been attached as an appendix or 14 exhibit to a response signed by Strojnik, but should not have been filed by itself 15 without his signature. 16 The response raises other issues, however. Brooke declares under penalty 17 of perjury that she is waiting for Defendant Red Lion Hotels Corporation to inform 18 her that the barrier has been remediated. It is that, she declares, and not anything 19 related to the pandemic that is deterring her from visiting the DoubleTree again. 20 (Decl. ¶¶ 5, 7, 10.) Without saying so explicitly, her declaration implies that she 21 knows Red Lion Hotels Corporation owns the DoubleTree. Besides making clear 22 she expects Red Lion to remove the barrier and notify her of the remediation, she 23 repeatedly refers to the DoubleTree as Defendant’s hotel. (See id. ¶¶ 2, 9.) She 24 makes these assertions under penalty of perjury, while acknowledging that Red 25 Lion denies it owns the hotel. (See id., ¶ 5.) Of course, if some entity other than 26 Red Lion owns and operates the hotel, that other entity’s failure to notify Brooke of 27 any remediation is entirely predictable, because that other entity likely knows 28 nothing about this lawsuit or that Brooke is expecting to hear from it. 1 Strojnik is required to sign pleadings himself, instead of relying on his client 2 to do so. See Fed. R. Civ. P. 11(a). The response as filed is therefore unacceptable 3 and will be stricken unless he promptly corrects this omission. See id. 4 The omission of Strojnik’s signature on the response does not alter the effect 5 of Fed. R. Civ. P. 11(b), which was triggered as soon as he electronically filed it or 6 permitted its filing. That subsection provides that Strojnik himself is representing 7 to the Court that the factual contentions have evidentiary support. See 8 Rule 11(b)(3). In its answer, filed October 15, Red Lion denied owning or operating 9 the DoubleTree hotel in question. (Docket no. 3 (Answer), ¶ 2.) It identifies the 10 hotel exactly as the complaint does (Compl., ¶ 2 (“DoubleTree by Hilton Hotel San 11 Diego Mission Valley located at 7450 Hazard Center Drive in San Diego 12 California”)), so there is no question the parties are talking about the same hotel.1 13 Strojnik has had ample time since then to investigate and confirm whether 14 Red Lion owns or operates the hotel in question. He also has a powerful motive 15 (besides his own Rule 11 obligations) to do so. A major hotel corporation’s false 16 denial that it owns or operates a particular hotel property is a either a blunder or 17 an audacious gambit, either of which Strojnik could leverage to his client’s 18 advantage. Furthermore, Strojnik has submitted his client’s own declaration, again 19 representing to the Court that Red Lion owns this hotel and making clear she 20 believes Red Lion is responsible for removing the barrier and notifying her of its 21 removal. If it turns out that Red Lion does not own the hotel and that Strojnik knew 22 or could have discovered that fact with reasonable diligence, this would be a 23 serious breach. 24 / / / 25

26 27 1 By itself, the inclusion of “Hilton” in the hotel’s name should prompt a reasonable person, even someone with no particular expertise, to ask whether another 28 1 Strojnik must correct the omission of his signature on the response. He may 2 ||either withdraw the response and refile it in corrected form, or else file a new 3 ||response with his signature added in an appropriate manner. If in light of this 4 ||order’s discussion he finds anything needs to be corrected or clarified, he should 5 ||make the correction or clarification before refiling. 6 Strojnik must make the correction promptly, and in any event no later than 7 ||December 17, 2020. If he does not, the response may be stricken, and the order 8 ||to show cause will remain unanswered. 9 10 IT IS SO ORDERED. 11 ||Dated: December 11, 2020 12 / ui 4. WY 13 Honorable Larry Alan Burns 44 Chief United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28