1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BRIAN WHITAKER, Case No. 21-cv-00629-EMC

8 Plaintiff, ORDER DENYING DEFENDANT’S 9 v. MOTION TO DISMISS

10 CASA MADRONA HOTEL AND SPA, Docket No. 9 LLC, 11 Defendant. 12 13 14 Plaintiff Brian Whitaker has sued Defendant Casa Madrona Hotel & Spa (the “Hotel”) for 15 violations of the federal Americans with Disabilities Act (“ADA”) and the California Unruh Civil 16 Rights Act. The main issue is whether the Hotel has violated an ADA regulation,

36.302(e)(1)(ii) which provides in relevant part that

18 [a] public accommodation that owns, leases (or leases to), or operates a place of lodging shall, with respect to reservations made 19 by any means, including by telephone, in-person, or through a third party – 20 . . . . 21 (ii) [i]dentify and describe accessible features in the hotels and 22 guest rooms offered through its reservations service in enough detail to reasonably permit individuals with 23 disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs. 24 25

(e)(1)(ii). 26 Having considered the parties’ briefs and accompanying submissions,1 as well as the oral 27 1 argument of defense counsel,2 the Court hereby DENIES the motion. 2 Mr. Whitaker “need only ‘plausibly suggest an entitlement to relief.’” Starr v. Baca, 652

, 1217 (9th Cir. 2011). Here, it is plausible that a reasonable jury could find in Mr. 4 Whitaker’s favor because, e.g., accessibility information on the Hotel’s website is not always 5 easily locatable (for instance, some information is not provided until after a user takes steps to 6 book a room and even then the link to the information is not conspicuous); accessibility 7 information on some parts of the website is fairly conclusory (for instance, simply stating “ADA 8 Accessible”); and accessibility information on other parts of the website, including on the pages 9 that describe the ADA guest rooms, is spare (for instance, referring to a bathtub and grab bars in 10 the bathroom). The conclusory nature and somewhat disorganized nature of the accessibility 11 information here stands in contrast to that provided by the defendant hotel in Love v. Ashford San 12 Francisco II LP, No. C-20-8458 EMC (N.D. Cal.), which this Court recently decided. 13 This is not to say that the Court is finding, as a matter of law, that the Hotel has violated 14 the ADA regulation above. Indeed, the Hotel has a fair argument that, based on the undisputed 15 evidence about the website, a reasonable jury could well find in its favor taking into account, e.g., 16 information on the website about renovations in 2003 and 2014 (i.e., after the 1991 Standards 17 were put in place), statements on the website about general ADA accessibility, photographs posted 18 on the website, and statements on the website such as the following: “All ADA guest rooms are 19 available to book on-line, subject to availability. If you are unable to book on-line or have 20 additional questions about our ADA guest rooms and features, please don’t hesitate to call (415) 21 332-0502 or email [email protected].” 22 But at this juncture, plausibility is all that is required of Mr. Whitaker. Cf. Forte v. Direct 23 Energy Servs., No. 6:17-CV-264 (FJS/ATB),

, at *19 (N.D.N.Y. 24 approve of this practice (given that the filing could easily have been provided in support of the 25 opening brief) and advises the Hotel and defense counsel that, in the future, they run the risk that a late filing will be stricken from the record. 26

2 Mr. Whitaker’s counsel did not appear at the hearing. Post-hearing, counsel communicated to 27 the Courtroom Deputy that the failure to appear was the result of a mistake. Counsel is advised 1 Aug. 14, 2017) (“At [the 12(b)(6)] stage in the litigation, affording all reasonable inferences in 2 Plaintiff's favor, it is plausible that a reasonable jury could find that Defendant’s disclosure in its 3 Terms and Conditions fails to be conspicuous.”). 4 This order disposes of Docket No. 9. 5 6 IT IS SO ORDERED. 7 8 Dated: April 26, 2021 9 10 ______________________________________ EDWARD M. CHEN 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27