1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SAMUEL LOVE, Case No. 20-cv-07131-JCS

8 Plaintiff, ORDER GRANTING MOTION TO DISMISS FIRST AMENDED 9 v. COMPLAINT

10 CCMH FISHERMAN’S WHARF LLC, Re: Dkt. No. 20 Defendant. 11

12 I. INTRODUCTION 13 Plaintiff Samuel Love brings this action against Defendant CCMH Fisherman’s Wharf 14 LLC (“CCMH”), which operates a hotel in San Francisco. Love alleges that CCMH’s reservation 15 website does not reasonably identify and describe accessible features of the hotel, in violation of 16 federal and California law. Love alleges that this failure prevents individuals with disabilities 17 from assessing whether the hotel meets their accessibility needs. CCMH moves to dismiss Love’s 18 claims for lack of standing and failure to state a claim under Rules 12(b)(1) and 12(b)(6) of the 19 Federal Rules of Civil Procedure. The Court held a hearing on March 12, 2021. For the reasons 20 discussed below, CCMH’s motion to dismiss is GRANTED.1 21 II. BACKGROUND 22 Because a plaintiff’s factual allegations are generally taken as true in resolving a motion to 23 dismiss under Rule 12(b)(6), this order summarizes Love’s allegations as if true. Nothing in this 24 order should be construed as resolving any issue of fact that might have been disputed at a later 25 stage of the case if it had proceeded beyond the present motion. 26 27 1 A. Allegations of the Complaint and Facts Subject to Judicial Notice 2 Love has cerebral palsy and thus has substantial physical difficulties, including the use of 3 only one arm and the need for “a wheelchair, walker, or cane for mobility.” Am. Compl. (“FAC,” 4 dkt. 17) ¶¶ 1–2. Love’s disability creates challenges for him to “stand, ambulate, reach objects 5 mounted at heights above his shoulders, transfer from his chair to other equipment, and maneuver 6 around fixed objects.” Id. ¶ 12. Because of these challenges, Love requires an accessible 7 guestroom when he travels. Id. Love also requires information about the “accessible features in 8 hotel rooms” at the time of booking so that “he can confidently book these rooms and travel 9 independently and safely.” Id. ¶ 13. 10 On or around September 11, 2020, Love accessed the CCMH website to make a 11 reservation for his trip to San Francisco in February 2021. Id. ¶¶ 14, 16. CCMH owns and 12 operates the San Francisco Marriott Fisherman’s Wharf Hotel. Id. ¶ 2. The website is the 13 “official online reservation system for this hotel.” Id. ¶¶ 16–17. 14 Love alleges that CCMH’s website has “very few, if any, accessible features identified for 15 any given room.” Id. ¶ 18. He states that the website has an “Accessibility” tab which lists 16 “supposedly accessible features” but does not list “any actual data or information beyond a naked 17 label of ‘accessible.’” Id. Love presents screenshots of the website’s list of “Accessible Areas 18 with Accessible Routes from Public Entrance,” which include spaces such as the “Business 19 Center,” the “Registration desk,” and “Restaurants(s)/Lounge(s).” Id. ¶¶ 18–19. Love alleges that 20 this list is too generic and amounts to the hotel “slap[ping] the label ‘accessible’ on all of its public 21 spaces.” Id. ¶¶ 18-19. Love contends that claiming an amenity or space is “accessible” is merely 22 “a conclusion or opinion” and is not a statement that persons with disabilities can use to make 23 judgments about whether a room is suitable for their needs. Id. ¶ 24. 24 Love concedes that the website’s accessibility features list contains “pieces of actual 25 information” that comply with the ADA and are specific enough for Love to use in his 26 determinations. Id. ¶¶ 20–21. For example, the website lists that “doorways are at least 32 inches 27 in width,” that “the bathtub has grab bars,” and that “the doors have levers.” Id. ¶ 22. While Love 1 characterizes them as a “meager offering” in contrast with other areas where CCMH relies only on 2 the “conclusory label ‘accessible.’” Id. Overall, Love alleges that the accessibility information 3 listed on the website “is nowhere near enough to permit a profoundly disabled wheelchair user to 4 have any confidence or come to any conclusions about whether any given hotel room works for 5 him or her.” Id. ¶ 23. 6 Love states that key pieces of information are missing. See id. ¶¶ 26–28. For example, 7 Love states that he could not determine if the showers in accessible rooms have “a roll-in shower 8 with both a shower seat . . . and grab bars” and if the toilet has grab bars. Id. Love also details 9 information he needs about bed, desk, and restroom measurements that he states are currently 10 unavailable on the website. See id. ¶ 29. Although Love states that he “does not need an 11 exhaustive list of accessibility features,” he asserts that the website needs a “handful of features to 12 be identified and described with a modest level of detail.” Id. ¶ 29. 13 Love alleges that the missing information barred him from booking a guestroom. See id. ¶ 14 29. Love travels to San Francisco regularly, in part for his work as an Americans with Disabilities 15 Act (“ADA”) tester, and plans to use this reservation website in the future. See id. ¶¶ 34, 36. 16 Love asserts two causes of action against CCMH: (1) Violation of the ADA (42 U.S.C. 17 § 12101 et seq.); and (2) Violation of the Unruh Civil Rights Act (Cal Civ. Code §§ 51–52). See 18 id. ¶¶ 40–47. Love seeks injunctive relief and attorneys’ fees under the ADA and the Unruh Act, 19 as well as damages under the Unruh Act. See id. at 15 (prayer for relief). 20 CCMH requests judicial notice of screenshots of its reservations website describing certain 21 accessibility features available, a list of other cases Love has brought asserting disability access 22 violations, and a consent decree in a case brought by the United States against Hilton Worldwide, 23 Inc. See Request for Judicial Notice (“RJN,” dkt. 20-2). The website screenshots are subject to 24 judicial notice under the doctrine of incorporation by reference, and the consent decree is subject 25 to judicial notice as a matter of public record not reasonably subject to dispute. The Court also 26 takes judicial notice of additional website screenshots submitted in response to arguments raised at 27 the hearing. See Supp’l Request for Judicial Notice (“Supp’l RJN,” dkt. 26). The Court declines 1 public records, it is wholly irrelevant to the resolution of the present motion. 2 B. Relevant Statutes 3 1. The Americans with Disabilities Act 4 Title III of the ADA prohibits discrimination by the “failure to make reasonable 5 modifications in policies, practices, or procedures, when such modifications are necessary to 6 afford such goods, services, facilities, privileges, advantages, or accommodations to individuals 7 with disabilities,” unless providing the “modifications would fundamentally alter the nature of 8 such goods, services, facilities, privileges, advantages, or accommodations.”

12182(B)(2)(A)(ii). 10 Specifically, the ADA’s “Reservations Rule” states that a public place of lodging shall 11 “modify its policies, practices, or procedures to ensure that individuals with disabilities can make 12 reservations for accessible guest rooms during the same hours and in the same manner as 13 individuals who do not need accessible rooms.”

(e)(1)(i). These places of 14 lodging must, “with respect to reservations made by any means . . . identify and describe 15 accessible features in the hotels and guest rooms offered through its reservation service in enough 16 detail to reasonably permit individuals with disabilities to assess independently whether a given 17 hotel or guest room meets his or her accessibility needs.”

(e)(1). 18 To prevail on an ADA claim, a plaintiff must show that: (1) they are disabled within the 19 meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of 20 public accommodation; and (3) the plaintiff was denied access to public accommodations by the 21 defendant because of the plaintiff’s disability. Molski v. M.J. Cable, Inc.,

(9th 22 Cir. 2007). The first and second elements are satisfied because there is no dispute among the 23 parties that Love is disabled or that the San Francisco Marriott Fisherman’s Wharf Hotel is a place 24 of accommodation under this statute. See generally FAC; Mot. (dkt. 20). The third element can 25 be satisfied if a plaintiff shows a violation of regulatory accessibility standards. See Chapman v. 26 Pier 1 Imports (U.S.), Inc.,

(9th Cir. 2011). CCMH does not dispute that a 27 violation of the Reservations Rule can support a claim. 1 12188(a)(2), 12205. 2 2. The Unruh Civil Rights Act 3 The Unruh Act states in relevant part that “[a]ll persons within the jurisdiction of 4 [California] are free and equal, and no matter what their . . . disability . . . are entitled to the full 5 and equal accommodations, advantages, facilities, privileges, or services in all business 6 establishments of every kind whatsoever.”

(b). A violation of the ADA is a 7 per se violation of the Unruh Act.

§ 51(f). Like the ADA, the Unruh Act allows plaintiffs to 8 seek injunctive relief and attorney’s fees. Id. § 52(c)(3). The Unruh Act also allows plaintiffs to 9 recover “up to a maximum of three times the amount of actual damage but in no case less than 10 four thousand dollars.” Id. § 52(a). A plaintiff “need not prove she suffered actual damages to 11 recover the independent statutory damages of $4,000.” Molski,

(citing Botosan v. 12 Paul McNally Realty,

(9th Cir. 2000)). 13 C. Motion to Dismiss 14 CCMH moves to dismiss Love’s complaint for failure to state a claim under Rule 12(b)(6) 15 of the Federal Rules of Civil Procedure. 2 Mot. at 1. CCMH argues that Love’s ADA claim fails 16 as a matter of law, and that his Unruh Act claim fails because it is dependent on the ADA claim 17 and because the Court should decline to exercise supplemental jurisdiction over the claim. 18 1. Arguments Regarding Love’s ADA Claim 19 CCMH argues primarily that its website “complies with the Reservations Rule.” Mot. at 6. 20 CCMH contends that its website provides more accessibility information than is required by the 21 ADA, relying in part on 2010 Department of Justice (“DOJ”) ADA guidance included as an 22 appendix to the Code of Federal Regulations. See Mot. at 7–8 (citing 28 C.F.R. Pt. 36, App. A 23

24 2 CCMH also moves to dismiss Love’s ADA claim for lack of standing under Rule 12(b)(1) but does not address this argument beyond a cursory citation in its notice of motion. Love meets the 25 Article III standing requirements. He alleges that he suffered a concrete injury in being prevented from making a hotel booking in the same capacity as ambulatory individuals, there is a causal 26 connection between Love’s injury and the alleged lack of information on the website, and the injury would be redressed by a favorable court decision. See generally FAC; See Lujan v. 27 Defenders of Wildlife,

(1992); see also Chapman,

. Love has 1 “Guidance on Revisions to ADA regulation on nondiscrimination on the Basis of Disability by 2 Public Accommodations and Commercial Facilities” (the “2010 Guidance”)). The 2010 Guidance 3 states that for hotels built in compliance with the 1991 ADA Standards for Accessible Design3 “it 4 may be sufficient to specify that the hotel is accessible, and for each accessible room, describe the 5 general type of room . . . the size and number of beds . . . the type of accessible bathing 6 facility . . . and communications features available in the room.” 2010 Guidance. 7 CCMH argues that its website “provides significantly more information about the Hotel’s 8 accessibility” than detailed in the 2010 Guidance because it identifies all common areas as 9 accessible, outlines specific doorway widths, indicates rooms that are mobility or hearing 10 accessible, states the number of beds, and outlines bathroom accessibility features such as bathtub 11 seat, grab bars, and shower wands. Mot. at 7–9. While CCMH agrees that its list of 12 accommodations is not all-inclusive, it stresses that the “hotel is not required to provide an 13 ‘accessibility survey’” and that in his complaint, Love “cherry picks a subset of [the] ADA 14 standards that he has determined must be repeated” on the website while arbitrarily ignoring other 15 standards. Id. at 15. 16 CCMH also argues that even if its website is only partially accessible, it still satisfies the 17 ADA regulations—which allow for alternative means of access—because it “provides a telephone 18 line in its Accessibility section to provide any further information about the accessibility features 19 of the hotel.” Id. at 13–14. CCMH notes that the 2010 Guidance acknowledges that after 20 “‘reservations are made . . . many individuals with disabilities may wish to contact the hotel or 21 reservations service for more detailed information . . . such as the specific layout of the room and 22 bathroom, shower design, grab-bar locations, and other amenities.” Reply (dkt. 22) at 10 (quoting 23 the 2010 Guidance) (alterations in original). 24 Love counters that the DOJ has not created any specific list of mandatory information. See 25 Opp’n (dkt. 21) at 3. Instead, Love argues that the DOJ has stated that it “cannot specify what 26 3 Versions of the Standards for Accessible Design were promulgated by the DOJ in 1991 and 27 2010, based on the ADA Accessibility Guidelines (“ADAAG”) published by the U.S. Access 1 information must be included in every instance” and that “specific information about accessibility 2 features is essential.” Id. at 4 (quoting the 2010 Guidance). Love contends that because the ADA 3 is a civil rights mandate, the regulations “should be construed broadly and liberally.” Id. at 23. 4 Love states that merely labeling a room as “accessible,” cannot be said to “describe accessible 5 features . . . in enough detail” for individuals to make assessments about the room. Id. at 13, 23. 6 Love also argues that a telephone line does not meet ADA standards because the Reservations 7 Rule requires “persons with disabilities have the opportunity to make reservations ‘in the same 8 manner’” as other guests. Id. at 6. 9 CCMH outlines several previous judicial decisions that it claims support its argument. See 10 Mot. at 10. For example, in Barnes v. Marriott Hotel Services., Inc., the court found that the 11 defendant’s reservation website’s description, which included statements such as “32 inch wide 12 openings” for guestrooms and “Accessible Room Features” descriptions, was compliant with the 13 2010 DOJ guidance and therefore was not in violation of the Reservations Rule. Barnes v. 14 Marriott Hotel Services., Inc., No. 15-cv-01409-HRL,

at *9–10 15 (N.D. Cal. Feb. 16, 2017). CCMH also cites a consent decree from United States v. Hilton 16 Worldwide Inc., in which the DOJ alleged “that the defendant’s online reservations system did not 17 ‘accurately reflect the inventory of accessible types of rooms and amenities available’” at hotel 18 properties. Mot. at 17 (quoting Consent Decree, United States v. Hilton Worldwide Inc., No. 10- 19 1924, ECF Doc. No. 5 (D.D.C. Nov. 29, 2010) (“Hilton Consent Decree”)). The consent decree 20 required the defendant to ensure that its reservation system identify a list of amenities, including 21 “number of beds,” “size of beds” and “roll-in shower or accessible tub.” Hilton Consent Decree 22 ¶ 25. CCMH states that these specifications meet the DOJ’s 2010 Guidance and that its own 23 website goes beyond the minimum requirements of the decree in Hilton Worldwide. See Mot. at 24 18. 25 Love counters that while the complaints in decisions cited by CCHM address questions on 26 the scope of the Reservations Rule, those cases were dismissed on other grounds, such as failure to 27 establish standing based on intent to return to the hotel at issue. Opp’n at 7–13. For instance, 1 analysis of the Reservations Rule issue because “it was not a necessary part of the holding or 2 decision.”

. Love also states that the decisions cited by CCMH are from district courts and 3 are not binding precedent.

4 CCMH also argues that much of Love’s complaint is factually inaccurate and arbitrary. 5 Mot. at 12, 19. For example, CCMH states that Love alleges that the website has no information 6 about toilet grab bars, but Love also quotes the website’s guestroom accessibility list to include 7 “Bathroom grab bars.” Mot. at 12–13; FAC ¶¶ 20, 29. CCMH also argues that its use of the term 8 “accessible” follows the “nationally uniform design standards of the ADA” and is a “specifically 9 defined term[],” not just a conclusory word or opinion. Mot. at 15–16 & n.5. In its reply brief, 10 CCMH goes further to highlight that “accessible” has a specific definition included in the 11 Standards for Accessible Design, and argues that this same definition should apply to its use on 12 the website. See Reply at 8. Even so, CCMH contends that its website goes beyond the minimum 13 labeling of “accessibility” and that “specific elements of the Hotel’s design meet [the] national 14 uniform standards for accessibility.” Mot. at 17. CCMH also argues that Love’s claim fails 15 because Love “does not allege that he attempted to make a reservation.”

. Love does not 16 address this argument in his opposition. See generally Opp’n. 17 Love responds to CCMH’s argument indirectly by outlining what he believes would be 18 sufficient information to allow individuals to reasonably make decisions. Opp’n at 16. These 19 descriptions include “modest information” about the doors, bed, toilet, sink, and shower.

Love 20 contends that other nearby hotels have met this higher standard, including the Hotel Fusion in San 21 Francisco, and that these descriptions strike the correct balance of information needed on a 22 reservation site.

Love also states that the Comfort Inn in Sunnyvale goes above and beyond 23 ADA standards on its reservation website by detailing floor and hotel corridor widths, information 24 about pool and spa accessibility, and even power outlets.

. 25 2. Arguments Regarding Love’s Unruh Act Claim 26 CCMH outlines two separate arguments for dismissing Love’s Unruh Act Claim. First, it 27 argues that Love’s claim under the Unruh Act is “predicated on the alleged violation of the ADA,” 1 dismissed for lack of supplemental jurisdiction.

. CCMH points to an intra-Circuit split 2 of district court decisions on the issue of exercising supplemental jurisdiction for Unruh Act 3 claims brought by serial litigants.

4 III. ANALYSIS 5 A. Legal Standard 6 A complaint may be dismissed for failure to state a claim on which relief can be granted 7 under Rule 12(b)(6) of the Federal Rules of Civil Procedure. “The purpose of a motion to dismiss 8 under Rule 12(b)(6) is to test the legal sufficiency of the complaint.” N. Star Int’l v. Ariz. Corp. 9 Comm’n,

(9th Cir. 1983). Generally, a claimant’s burden at the pleading stage 10 is relatively light. Rule 8(a) of the Federal Rules of Civil Procedure states that a “pleading which 11 sets forth a claim for relief . . . shall contain . . . a short and plain statement of the claim showing 12 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). 13 In ruling on a motion to dismiss under Rule 12(b)(6), the court takes “all allegations of 14 material fact as true and construe[s] them in the light most favorable to the non-moving party.” 15 Parks Sch. of Bus. v. Symington,

(9th Cir. 1995). Dismissal may be based on a 16 lack of a cognizable legal theory or on the absence of facts that would support a valid theory. 17 Balistreri v. Pacifica Police Dep’t,

(9th Cir. 1990). A pleading must “contain 18 either direct or inferential allegations respecting all the material elements necessary to sustain 19 recovery under some viable legal theory.” Bell Atl. Corp. v. Twombly,

(2007) 20 (citing Car Carriers, Inc. v. Ford Motor Co.,

(7th Cir. 1984)). “A pleading 21 that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action 22 will not do.’” Ashcroft v. Iqbal,

(2009) (quoting Twombly,

). 23 “[C]ourts ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’” 24 Twombly,

(quoting Papasan v. Allain,

(1986)). “Nor does a 25 complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 26

(quoting Twombly,

). Rather, the claim must be “‘plausible on its 27 face,’” meaning that the claimant must plead sufficient factual allegations to “allow the court to 1 Twombly,

). 2 B. Love’s ADA Claim Fails 3 As discussed above, the Reservations Rule of the ADA states that a public place of lodging 4 shall “modify its policies, practices, or procedures to ensure that individuals with disabilities can 5 make reservations for accessible guestrooms during the same hours and in the same manner as 6 individuals who do not need accessible rooms.”

(e)(1)(i). These places of 7 lodging must, “with respect to reservations made by any means . . . identify and describe 8 accessible features in the hotels and guestrooms offered through its reservation service in enough 9 detail to reasonably permit individuals with disabilities to assess independently whether a given 10 hotel or guestroom meets his or her accessibility needs.”

(e)(1). 11 While the rule itself provides no specifics on implementation, the DOJ provides more 12 details in its Appendix A:

13 [The requirement] to identify and describe the accessible features in 14 the hotels and guest rooms . . . is essential to ensure that individuals with disabilities receive the information they need to benefit from the 15 services offered by the place of lodging. As a practical matter, a public accommodation’s designation of a guest room as “accessible” will not 16 ensure necessarily that the room complies with all of the 1991 Standards. In older facilities subject to barrier removal requirements, 17 strict compliance with the 1991 Standards is not required. Instead, 18 public accommodations must remove barriers to the extent that it is readily achievable to do so. 19 Further, hotel rooms that are in full compliance with current standards 20 may differ, and individuals with disabilities must be able to ascertain which features—in new and existing facilities—are included in the 21 hotel’s accessible guest rooms. For example, under certain 22 circumstances, an accessible hotel bathroom may meet accessibility requirements with either a bathtub or a roll-in shower. The presence 23 or absence of particular accessible features such as these may be the difference between a room that is usable by a particular person with a 24 disability and one that is not

25 . . . 26 The Department recognizes that a reservations system is not intended 27 to be an accessibility survey. However, specific information that travelers will encounter, the Department cannot specify what 1 information must be included in every instance. For hotels that were 2 built in compliance with the 1991 Standards, it may be sufficient to specify that the hotel is accessible and, for each accessible room, to 3 describe the general type of room (e.g., deluxe executive suite), the size and number of beds (e.g., two queen beds), the type of accessible 4 bathing facility (e.g., roll-in shower), and communications features available in the room (e.g., alarms and visual notification devices). 5 Based on that information, many individuals with disabilities will be 6 comfortable making reservations.

7 For older hotels with limited accessibility features, information about the hotel should include, at a minimum, information about accessible 8 entrances to the hotel, the path of travel to guest check-in and other essential services, and the accessible route to the accessible room or 9 rooms. In addition to the room information described above, these 10 hotels should provide information about important features that do not comply with the 1991 Standards. For example, if the door to the 11 “accessible” room or bathroom is narrower than required, this information should be included (e.g., door to guest room measures 30 12 inches clear). This width may not meet current standards but may be adequate for some wheelchair users who use narrower chairs. In many 13 cases, older hotels provide services through alternatives to barrier 14 removal, for example, by providing check-in or concierge services at a different, accessible location. Reservations services for these 15 entities should include this information and provide a way for guests to contact the appropriate hotel employee for additional information. 16 . . .

17 As commenters representing hotels have described, once reservations 18 are made, some hotels may wish to contact the guest to offer additional information and services. Or, many individuals with 19 disabilities may wish to contact the hotel or reservations service for more detailed information. At that point, trained staff (including staff 20 located on-site at the hotel and staff located off-site at a reservations center) should be available to provide additional information such as 21 the specific layout of the room and bathroom, shower design, grab- 22 bar locations, and other amenities available (e.g., bathtub bench). 23 2010 Guidance. That appendix also states that “basic nondiscrimination principles mandate that 24 individuals with disabilities should be able to reserve hotel rooms with the same efficiency, 25 immediacy, and convenience of those who do not need accessible guestrooms.”

This 26 “administrative guidance on ADA compliance is entitled to deference” by courts. Robles v. 27 Domino’s Pizza, LLC,

(9th Cir. 2019); see also Bragdon v. Abbott,

The Ninth Circuit has not yet addressed the level of detail required by the Reservations 2 Rule, but the overwhelming majority of recent district court decisions in this circuit have rejected 3 claims similar to those presented here, including other cases in which Love challenged Marriott 4 reservation websites substantially identical to the one used by CCMH. See, e.g., Love v. Ashford 5 San Francisco II LP, No. 20-cv-08458-EMC,

, at *4–5 (N.D. Cal. Apr. 15, 6 2021) (collecting other district court decisions dismissing such claims); but see Garcia v. Patel & 7 Joshi Hosp. Corp., No. EDCV 20-2666 JGB (PVCx),

(C.D. Cal.

, 2021) (denying a motion to dismiss similar claims). While the question may be closer 9 than some decisions have suggested, this Court follows the consensus view and holds the 10 accessibility information included on CCMH’s website sufficient as a matter of law. 11 Love has not alleged or argued that any physical aspect of the hotel at issue violates 12 applicable ADA building standards, under either the 1991 or 2010 Standards for Accessible 13 Design. The website includes information that the 2010 Guidance states “may be sufficient” for 14 hotels built in compliance with those standards: it indicates that certain rooms and common spaces 15 are “accessible,” describes the “general type of room” and “the size and number of beds” (“1 King 16 Bed, Room” or “2 Queen Beds, Room”), identifies “the type of accessible bathing facility” (“roll- 17 in shower” or “bathtub”), and lists “communications features available in the room” (including 18 “Flashing door knockers,” “TV with close-captioning,” and “TTY/TTD available”).4 See 2010 19 Guidance; RJN Exs. 1, 2; Supp’l RJN Exs. 1, 2. The information he alleges he was unable to 20 determine from the website, see FAC ¶ 29, includes features specifically regulated by the 21 Standards for Accessible Design, like space to pull a wheelchair next to the bed and a toilet with a 22 compliant seat height and required grab bars, as well as information that the 2010 Guidance 23 specifically contemplates could be addressed in a post-reservation telephone call, like “shower 24 design, grab-bar locations, and other amenities available (e.g., bathtub bench),” see 2010 25 Guidance. 26 There is some tension within the 2010 Guidance, with aspects of it suggesting that the 27 1 information CCMH provided is sufficient, while other portions could be read as disclaiming intent 2 to provide a clear rule—in particular, the acknowledgment that “the Department cannot specify 3 what information must be included in every instance,” and the use of the word “may” to introduce 4 potentially sufficient information. See

Ultimately, however, the Court agrees with CCMH 5 (and the majority of decisions to addressing this issue) that requiring more information than 6 CCMH provided here would contravene the guidance “that a reservations system is not intended 7 to be an accessibility survey.” See

8 Love characterizes the further information he seeks as pertaining to “core, essential 9 features of a hotel guestroom” that a typical wheelchair user would “reasonably need to have in 10 order to have confidence in booking their room,” Opp’n at 16, but virtually all of the “numerous, 11 highly technical requirements” of the Standards for Accessible Design, see

are necessary to at 12 least some guests with disabilities, hence why they are required. As Love acknowledges, listing 13 compliance with each of those requirements would be untenable. Judge Ryu’s conclusion that a 14 guest can presume a room advertised as “accessible” complies with at least the 1991 Standards for 15 Accessible Design unless otherwise specified, and that for such rooms the Reservation Rule 16 requires additional disclosure of only basic information identified in the 2010 Guidance like the 17 number of beds and type of bathing facility, strikes an appropriate balance to provide guests who 18 have disabilities with relevant information without requiring an “accessibility survey” in the 19 reservation system. See Love v. Wildcats Owner LLC, __ F. Supp. 3d __, No. 20-cv-08913-DMR, 20

, at *6 (N.D. Cal. Apr. 5, 2021).5 The DOJ’s conclusion that “[b]ased on that 21 information, many individuals with disabilities will be comfortable making reservations” is among 22 the clearer portions of the 2010 Guidance, and is entitled to deference. 23 The minority view of Patel & Joshi identifies some weaknesses in CCMH’s position, 24 5 Again, there is tension on this point within the 2010 Guidance, which states that “a public 25 accommodation’s designation of a guest room as ‘accessible’ will not ensure necessarily that the room complies with all of the 1991 Standards.” See 2010 Guidance. The Court understands that 26 portion of the guidance as addressing the status quo before adoption of the Reservations Rule, and explaining the need for the Reservations Rule to require disclosures of such deviations. Of course, 27 the inference that a room complies with the 1991 Standards for Accessible Design would be 1 including ambiguous portions of the 2010 Guidance and the fact that the Hilton Consent Decree 2 predated regulatory adoption of the Reservations Rule, but it does not provide a satisfactory 3 alternative standard. See

, at *13–14. That case describes the 4 “requested information about the accessibility of toilets or of clear floor space” as “sufficiently 5 narrow and consistent with the kinds of information that the DOJ Guidance identifies,” but does 6 not explain why that particular information would be required under the 2010 Guidance, or what 7 differentiates it from any other information that some hotel guests with disabilities might require. 8 See

9 Patel & Joshi also discounted the defendant hotel’s note that patrons could contact the 10 front desk with questions not resolved by the description of amenities, holding that the invitation 11 for such further inquiry “does little to support the Hotel’s compliance with the Reservations Rule,” 12

, but did not address the portion of the 2010 Guidance acknowledging that “many 13 individuals with disabilities may wish to contact the hotel or reservations service for more detailed 14 information . . . such as the specific layout of the room and bathroom, shower design, grab-bar 15 locations, and other amenities available,” see 2010 Guidance. Nor is a possibility that some 16 patrons with disabilities might need to call the hotel for further information about their specific 17 needs clearly inconsistent with the regulatory requirement “to ensure that individuals with 18 disabilities can make reservations for accessible guest rooms . . . in the same manner as 19 individuals who do not need accessible rooms,”

(e)(1)(i), since some patrons 20 who do not need accessible rooms might also need to call and inquire about their own specific 21 needs—for example, whether a room has sufficient space to set up a crib for a child. 22 At the hearing in this case, both parties agreed that the question of what the Reservations 23 Rule requires is a legal matter for the Court to decide, not a question of fact for a jury. A free- 24 ranging, case-specific inquiry into what information a guest might reasonably need to make a 25 reservation would invite the sort of inconsistency and uncertainty that the DOJ presumably sought 26 to dispel by providing some degree of additional guidance as an appendix to the regulation. The 27 Court therefore declines to enter into such an inquiry, as long as the reservation system identifies 1 2010 Guidance, discloses any deviations from the Standards for Accessible Design, and provides a 2 mechanism for a patron to obtain additional information. 3 Accepting the DOJ’s determination that “many individuals with disabilities will be 4 comfortable making reservations” based on the type of information CCMH provided here, see 5 2010 Guidance, the Court holds as a matter of law that such disclosures, coupled with a telephone 6 number to call for inquiries about more specific needs, “[i]dentify and describe accessible features 7 in the hotels and guest rooms . . . in enough detail to reasonably permit individuals with 8 disabilities to assess independently whether a given hotel or guest room meets his or her 9 accessibility needs,” see

(e)(1)(ii). Love therefore has not stated a claim for 10 violation of that regulation, and leave to amend would be futile. CCMH’s motion to dismiss 11 Love’s ADA claim is GRANTED. 12 C. The Court Declines Supplemental Jurisdiction as to Love’s Unruh Act Claim 13 The only basis Love has asserted for this Court’s subject matter jurisdiction over his state- 14 law Unruh Act claim is supplemental jurisdiction under

. See FAC ¶ 5.6 Under 15 subsection (c) of that statute, however, a district court “may decline to exercise supplemental 16 jurisdiction over a claim under subsection (a) if,” among other reasons, “the district court has 17 dismissed all claims over which it has original jurisdiction.”

(c). “[I]n the usual 18 case in which all federal-law claims are eliminated before trial, the balance of factors to be 19 considered under the [supplemental] jurisdiction doctrine—judicial economy, convenience, 20 fairness, and comity—will point toward declining to exercise jurisdiction over the remaining state- 21 law claims.” Carnegie-Mellon Univ. v. Cohill,

, 350 n.7 (1988). The Court therefore 22 declines to exercise supplemental jurisdiction over Love’s Unruh Act claim after dismissing his 23 ADA claim.7 24 25

26 6 There is no indication, and no party has suggested, that this case falls within the Court’s diversity jurisdiction under

. 27 7 If Love had stated a claim sufficient to proceed under the ADA, the Court would exercise 1 IV. CONCLUSION 2 For the foregoing reasons, CCMH’s motion is GRANTED, Love’s ADA claim is 3 DISMISSED with prejudice, and Love’s Unruh Act claim is DISMISSED for lack of jurisdiction. 4 || The Clerk shall enter judgment in favor of CCMH and close the case. 5 IT ISSO ORDERED. 6 || Dated: May 3, 2021 7 c aa J PH C. SPERO 8 ief Magistrate Judge 9 10 1]

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