1 UNITED STATES DISTRICT COURT

2 NORTHERN DISTRICT OF CALIFORNIA

3 CHRIS LANGER, Case No.: 21-CV-1150 YGR 4 Plaintiff, ORDER DENYING MOTION TO DISMISS FIRST 5 AMENDED COMPLAINT; VACATING v. HEARING; SETTING CASE MANAGEMENT 6 CONFERENCE INTERVAL INTERNATIONAL, INC., 7 DKT. NO. 15 Defendant. 8 9 Plaintiff Chris Langer brings this action pursuant to the Americans With Disabilities Act 10 (“ADA”) and California’s Unruh Civil Rights Act,

(“the Unruh Act”), 11 against defendant Interval International, Inc. On April 27, 2021, Langer filed a First Amended 12 Complaint. (Dkt. No. 13 [“FAC”].) The instant motion to dismiss the FAC followed. (Dkt. No. 13 15.) Having carefully considered the papers submitted and the pleadings in this action, and for the 14 reasons set forth below, the Court DENIES the motion to dismiss the FAC.1 15 Langer alleges he is a person with a disability (partial hearing loss) and that he requires the 16 use of closed captioning in order to understand all the content of internet media like movies and 17 tutorial videos. He alleges that Interval is in the business of renting timeshare vacations and uses 18 its website to induce customers to use its services. (FAC ¶¶ 12, 13.) He alleges that he visited the 19 website in February 2021 looking for information about Interval’s services and discovered that the 20 video content he attempted to view on the website did not have closed captioning. (Id. ¶ 16.) 21 Langer alleges the website provided information about becoming a member and staying at 22 Interval’s physical locations. (Id. ¶ 15.) The website was meant to “induce customers to patronize 23 the physical locations” and “provides direct interface with the physical locations by allowing 24 scheduling appointments through the site.” (Id.) 25 Under Title III of the ADA, “[n]o individual shall be discriminated against on the basis of 26 disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or

27 1 The Court finds this motion appropriate for decision without oral argument and VACATES 1 accommodations of any place of public accommodation.”

(a). To succeed on a 2 discrimination claim under Title III of the ADA, a plaintiff must show that they are disabled within 3 the meaning of the ADA; defendant is a private entity that owns, leases, or operates a place of 4 public accommodation; and plaintiff was denied public accommodation by the defendant because 5 of their disability. Arizona ex rel. Goddard v. Harkins Amusement Enters., Inc.,

, 670 6 (9th Cir. 2011); see also Disabled Rts. Action Comm. v. Las Vegas Events, Inc.,

, 874 7 (9th Cir. 2004) (“a place of public accommodation may be ‘operated’ by entities who do not own 8 the [physical] facility and use it for a limited time period only”). The Ninth Circuit has held that 9 Title III of the ADA applies to websites with a nexus to public accommodations, such as restaurants 10 and lodging, since the websites connect customers to the services provided at the physical 11 locations. See Robles v. Domino's Pizza, LLC,

(9th Cir. 2019) (finding nexus 12 between of Domino’s website and app and its physical restaurants since alleged inaccessibility of 13 website and app “impeded access to the goods and services of its physical pizza franchises—which 14 are places of public accommodation”); see also Langer v. Pep Boys Manny Moe & Jack of 15 California, No. 20-CV-06015-DMR,

, at *2 (N.D. Cal. Jan. 15, 2021) (failure to 16 17 allege nexus between plaintiff’s use of website and intention to access physical location). 18 Interval seeks to dismiss the FAC essentially on two grounds.2 First, Interval contends that 19 plaintiff has failed to allege that it operates a “public accommodation” covered under either Title III 20 of the ADA or Unruh Act, because: (1) there is no nexus between defendant’s alleged inaccessible 21 website and any physical place; and (2) because the service Interval operates is exempt from Title 22 III under the exception for private membership clubs. Further, following from the “lack of physical 23 nexus” argument, Interval contends that plaintiff also lacks standing since he does not allege an 24 intent to visit or return to a physical place of public accommodation. Interval argues the Court can 25 take judicial notice of its website, which both refutes plaintiff’s allegations that Interval owns or 26 27 28 2 The alleged Unruh Act violation is derivative of the alleged ADA Title III violation. The 1 || operates any physical location, and further shows that the (undisputedly physical) time-share 2 || accommodations bookings on the website are only available to members, not to the general public. 3 Interval’s reliance on the contents of its website as a basis for dismissing the claims here 4 Il fails. Asa preliminary matter, Interval has not: submitted a request for judicial notice; provided > |! screenshots of or quotations from the portions of the website it believes the Court should consider; 6 or offered any basis for determining whether the current version of its website is identical to the one ’ Langer alleges he visited in February 2021. (See FAC ¥ 15.) Beyond the fact that Interval suggests the Court take judicial notice of unspecified ° statements on its website, Interval offers its representation of those unspecified statements for their truth in order to dispute the allegations of the FAC. Interval argues that it is “evident” from the

contents of its website that it does not own or operate any physical location, and that the time share E 3 accommodations its members may book through the website are not available the general public. = 4 The circumstances under which a court can consider matters outside the pleadings on a motion 15 under Rule 12(b)(6) are limited. Even where documents are incorporated by reference or properly 5 16 || Subject to judicial notice, the Court cannot consider them for the truth of the assertions therein, 17 || particularly in the context of a pleading motion. See Lee v. City of Los Angeles,

, 690 = 18 || (9th Cir. 2001) (court taking judicial notice of another court’s opinion does so only for its 19 || existence, not for the truth of the facts recited therein). Here, the Court cannot take judicial notice 20 || of the truth of any statements on Interval’s website, much less find those unspecified statements 21 || would warrant dismissal of a complaint alleging facts to the contrary. 22 Accordingly, the Motion to Dismiss the FAC is DENIED. Interval shall file its answer no 23 1) Jater than J uly 20, 2021. The matter is SET for a case management conference on August 30, 24 2021, at 2:00 p.m. via the Court’s Zoom videoconferencing platform. °5 This terminates Docket No. 15. *° IT Is SO ORDERED. 27 Il Date: July 2, 2021 Lypone Migg toff been 28 YVONNE GONZALEZ ROGE UNITED STATES DISTRICT COURT JUDGE