1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SAMUEL LOVE, Case No. 21-cv-02845-EMC

8 Plaintiff, ORDER GRANTING DEFENDANTS’ 9 v. MOTION TO DISMISS

10 FYI MC, LLC, et al., Docket No. 9 11 Defendants.

12 13 14 Pending before the Court is Defendants FYI MC, LLC and PYP GE LLC’s motion to 15 dismiss Plaintiff Samuel Love’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). 16 See Docket No. 13 (“Mot.”). 17 For the following reasons, the Court GRANTS Defendants’ motion to dismiss. 18 I. BACKGROUND 19 A. Factual Allegations in the Complaint 20 Mr. Love’s complaint alleges as follows. Plaintiff is a paraplegic California resident who 21 uses a wheelchair for mobility. Compl. ¶ 1. He has brought numerous lawsuits challenging the 22 adequacy of hotels’ websites in describing accessibility. See, e.g., Love v. Ashford S.F. II LP, No. 23 20-CV-08458-EMC,

(N.D. Cal. Apr. 15, 2021); Love v. Wildcat Owners 24 Lessee, Case No. 4:20-cv-08913-DMR (N.D. Cal. April 5, 2021); Love v. KSSF Enters. Inc., 20- 25 cv-08535-LB,

(N.D. Cal. Mar. 18, 2021); Love v. Marriott Hotel 26 Servs., No. 20-cv-07137-TSH,

(N.D. Cal. Mar. 3, 2021); Love v. 27 Gates Hotel, Inc., No. 20-cv-07191-SI,

(N.D. Cal. Mar. 2, 2021). 1 Silverado Trail, Napa, California (the “Hotel”). Compl. ¶ 2. 2 On February 4, 2021, Mr. Love alleges he accessed the Hotel’s website, located at 3 www.millikencreekinn.com, to book an accessible room for a trip he was planning to Napa in 4 August of 2021.

at 13–17. The Hotel’s website had an “Accessibility” tab that, according to 5 Mr. Love, only states: “[i]f you have any questions about the accessibility at Milliken Creek Inn & 6 Spa, please contact the innkeeper for assistance.”

⁋ 20. Mr. Love complains that the website 7 does not provide details about the guestroom’s accessibility features, including the bathtub, 8 shower, toilet, grab bars, or lavatory sink.

⁋⁋ 20–23. 9 Mr. Love contends that the Hotel is required by federal regulations to describe the critical 10 areas in the guestroom “in enough detail to permit individuals with disabilities to assess 11 independently whether a given hotel or guest room meets his accessibility needs.”

⁋ 27. More 12 specifically, Mr. Love alleges the Hotel’s website should state: 13 • “that the hotel room entrance and interior doors provide at least 32 inches of 14 clearance”; 15 • “that there is at least 30 inches width on the side of the bed”; 16 • that “the desk provides knee and toe clearance and is at least 17 inches high, 30 17 inches wide, and runs at least 17 inches deep”; 18 • “that the toilet seat height is between 17-19 inches;” 19 • “that [the toilet] has the two required grab bars to facilitate transfer;” 20 • that “the sink provide[s] the knee clearance (17 inches high, 30 inches wide, 17 21 inches deep)”; 22 • that “any plumbing under the sink [is] wrapped with insulation to protect against 23 burning contact”; 24 • that “the lowest reflective edge of the mirror is no more than 40 inches high”; and 25 • “what shower it is; . . . whether it has an in-shower seat; . . . that there are grab bars 26 mounted on the walls; . . . that there is a detachable hand-held shower wand; [and] 27 that the wall mounted accessories and equipment are all within 48 inches high.” 1 Because it lacks this information, Mr. Love contends the Hotel’s website violates a 2 regulation issued pursuant to the Americans With Disability Act (ADA) of 1990, which require 3 hotels to “describe accessible features in the hotels and guest rooms offered through its 4 reservations service in enough detail to reasonably permit individuals with disabilities to assess 5 independently whether a given hotel or guest room meets his or her accessibility needs.” FAC ⁋ 6 34 (citing 28 C.F.R. 36.302(e)(1)(ii) (the “Reservations Rule”)). 7 Mr. Love raises two causes of action in the FAC for violations of (1) Title III of the ADA, 8 42 U.S.C. §§ 12181–12189; and (2) California’s Unruh Civil Rights Act (the “Unruh Act”), Cal. 9 Civ. Code § 51-53. Id. ⁋⁋ 32–39. 10 B. Supplemental Briefs 11 Defendants submitted a supplemental brief at the instruction of this Court explaining that 12 the Hotel is not in compliance with the ADA’s 1991 Standards1 because it was built before 1991. 13 See Docket No. 14 (Defs.’ Suppl. Br.) at 1–2. The Hotel was built in the 1850’s as a stagecoach 14 stop and in 1980 was converted to a hotel with eleven rooms spread throughout three buildings. 15 Id. at 1. The current owner purchased the Hotel in 2013 with hopes of renovating the existing 16 rooms and buildings but was unable to do so because of permitting issues with the City of Napa. 17 Id. According to Defendants, the main reason the property is not ADA compliant is that “[t]he 18 property has a slope in many areas that could not be economically or environmentally graded.” Id. 19 However, the owner was able to obtain permits and begin construction in January 2020 on a new 20 building that will house one ADA accessible room, but work has been proceeding slowly due to 21 the COVID-19 pandemic. Id. The Hotel will therefore not have an ADA-compliant room until 22 the completion of the new building, which is projected for the summer of 2022. Id. at 2. 23 C. Defendants’ Request for Judicial Notice 24 Defendants ask this Court to take judicial notice of the Hotel’s website, which they 25 contend contradicts the FAC’s allegations. At the very bottom of the Hotel’s homepage there is a 26 small link titled “Accessibility”: 27 1 Quick Links 2 3 ROOMS OFFERS 4 SPA FOOD & WINE 5 LOCATION ACCESSIBILITY 6 7 || Docket No. 9 (Req. for Judicial Notice (RJN)), Ex. 1. When a user clicks on that “Accessibility” 8 || link, they are taken to a separate page titled “Accessibility” that clearly states the Hotel is not 9 || accessible and does not have an ADA-compliant guestroom: 10 ADA ACCESSIBILITY Milliken Creek Inn strives to provide inviting accommodations that are welcoming and accessible for all individuals, including those with hearing, vision, or another 12 disability. We are in the process of enhancing the accessibility features of the inn including a new, fully accessible guestroom. We anticipate completing

construction on this new guestraom by Summer 2022. Please contact the inn for re-opening dates of this guestroom.

Accessibility Assistance 14 6 Due to the historic nature of the hotel, several areas of the property are not accessible for individuals who require mobility assistance. If you have questions about 3 15 the accessibility of the hotel or booking an accessible room at the hotel, we invite you to contact us immediately via telephone at (707) 255-1197 or via email at millikencré[email protected] and our friendly quest services team will gladly assist you

16 If our ADA-accessible guestrooms appear to be already reserved online, please contact us via phone for assistance.

Z 18 || Id., Ex.2. The Accessibility page also describes the following “Accessibility Features” in the 19 Hotel’s common areas: 20 wa Property Accessibility Features 21 * Due to the historic nature and layout of the hotel, the property Is currently * Braille signage at each questroom door not accessible to those requiring wheelchair access An accessible parking space 22 * 32-inch wide openings to common areas Service animals are always welcome at Milliken Creek Inn 2 * Accessibility equipment for the hearing impaired 3 e Please call us at (707) 255-1197 with any accessibility questions * Accessible side approach registration desk 24 25 || Jd. As for the guestrooms, the website acknowledges the Hotel does not have “a fully accessible 26 || guestroom,” but lists the following accessibility features currently available in certain rooms: a7 28 ///

l Guestroom Accessibility Features Although the guestroam has the following accessibility features, the path of Although the guestroom has the following accessibility features, the path of travel to the guestroom may not be accessible for individuals who require travel to the guestroom may not be accessible for individuals who require 2 certain types of mobility assistance. We are in the process of building a fully certain types of mobility assistance. We are in the process of building a fully accessible guestroom. In the meantime, our Brookwood guestroom (#11) has. accessible guestroom. In the meantime, our Brookwood Guestroom (#10) has 3 the following features available the following features available * Telephone with visual call alert and volume control * Closed caption television 4 e An electrical outlet within 4 feet of the telephone for TTY use (available at « Grab bars in the shower with a removable shower seat the Front Desk) « Eléctrical outlets within 4 feet of the telephone for TTY use (available at the 5 * Doorbell with visual notification device Front Desk) * Visual strobe alarms for fire notification * 36” clearance around the king-sized bed 6 « Closed caption television « Entrance door width of 36 7 « 36” clearance around the king-sized bed * Entrance door width of 36 10 || Jd. Finally, the website instructs guests to contact the hotel if they “have any questions about 11 accessibility”: 12 - ope - Accessibility Assistance

Due to the historic nature of the hotel, several areas of the property are not accessible for individuals who require mability

14 assistance. If you have questions about the accessibility of the hotel or booking an accessible room at the hotel, we invite you

oO to contact us immediately via telephone at (707) 255-1197 or via email at [email protected] and our friendly 2 15

quest services team will gladly assist you. 16 . . . 3 lf our ADA-accessible guestrooms appear to be already reserved online, please contact us via phone for assistance.

Z 18 Id. 19 || D. Procedural Background 20 On April 19, 2021, Mr. Love filed his initial complaint. See Compl. On May 19, 2021, 21 Defendants filed the pending motion to dismiss for failure to state a claim pursuant to Rule 22 || 12(b)(6). See Mot. 23 II. STANDARD OF REVIEW 24 || A. Rule 12(b)(6) Motion to Dismiss 25 Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include “a short and plain 26 || statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A 27 complaint that fails to meet this standard may be dismissed pursuant to Rule 12(b)(6). See Fed. R. 28 || Civ. P. 12(b)(6). To overcome a Rule 12(b)(6) motion to dismiss after the Supreme Court’s =

1 decisions in Ashcroft v. Iqbal,

(2009) and Bell Atlantic Corporation v. Twombly, 550

(2007), a plaintiff’s “factual allegations [in the complaint] ‘must . . . suggest that the 3 claim has at least a plausible chance of success.’” Levitt v. Yelp! Inc.,

(9th 4 Cir. 2014). The court “accept[s] factual allegations in the complaint as true and construe[s] the 5 pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & 6 Marine Ins. Co.,

(9th Cir. 2008). But “allegations in a complaint . . . may not 7 simply recite the elements of a cause of action [and] must contain sufficient allegations of 8 underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” 9 Levitt,

(quoting Eclectic Props. E., LLC v. Marcus & Millichap Co.,

(9th Cir. 2014)). “A claim has facial plausibility when the Plaintiff pleads factual 11 content that allows the court to draw the reasonable inference that the Defendant is liable for the 12 misconduct alleged.” Iqbal,

. “The plausibility standard is not akin to a 13 ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted 14 unlawfully.”

(quoting Twombly, 550 U.S. at 556). 15 III. REQUEST FOR JUDICIAL NOTICE 16 When ruling on a Rule 12(b)(6) motion to dismiss, a court may, without converting the 17 motion to one for summary judgment, consider “documents attached to the complaint, documents 18 incorporated by reference in the complaint, or matters of judicial notice[.]” United States v. 19 Ritchie,

(9th Cir. 2003). Here, the Court can take judicial notice of the 20 Hotel’s website’s contents because it is “information posted on certain . . . webpages that [Mr. 21 Love] referenced in the [FAC].” Daniels-Hall v. Nat’l Educ. Ass’n,

(9th Cir. 22 2010). Moreover, Mr. Love does not oppose Defendants’ request for judicial notice. See Docket 23 No. 14 (“Opp’n”) at 7. 24 Accordingly, the Court GRANTS Defendants’ request to take judicial notice of the 25 portions of the Hotel’s website attached as exhibits 1 and 2 to its request for judicial notice. See 26 RJN, Exs. 1 & 2. 27 /// 1 IV. MOTION TO DISMISS 2 A. ADA Claim 3 Mr. Love’s ADA claim is entirely premised on Defendants’ alleged failure to comply with 4

(e)(1)(ii), also known in the hospitality industry as the “Reservations Rule,” 5 which requires hotels to “[i]dentify and describe accessible features in the hotels and guest rooms 6 offered through its reservations 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) (emphasis added). 9 Importantly, the Reservations Rule does not specify exactly what information hotels are 10 “reasonably” required to disclose.

As a result, the Department of Justice received several 11 comments when it drafted the Reservations Rule urging it to “identify the specific accessible 12 features of hotel rooms that must be described in the reservations system.” 28 C.F.R. § Pt. 36, 13 App. A, “Title III Regulations 2010 Guidance and Section-by-Section Analysis” (the “2010 14 Guidance”). The commentators’ concern was that, without further clarification, the Reservations 15 Rule “essentially would require reservations systems to include a full accessibility report on each 16 hotel or resort property in its system.” Id. In response, the Department “recognize[d] that a 17 reservations system is not intended to be an accessibility survey” and that “[b]ecause of the wide 18 variations in the level of accessibility that travelers will encounter, the Department cannot specify 19 what information must be included in every instance.” Id. (emphasis added). With that in mind, 20 the 2010 Guidance outlined what information is likely sufficient to satisfy the Reservations Rule, 21 which depends on whether the hotel was built before or after 1991. “For hotels that were built in 22 compliance with the 1991 standards” the DOJ states:

23 it may be sufficient to specify that the hotel is accessible and, for each accessible room, to describe the general type of room (e.g., 24 deluxe executive suite), the size and number of beds (e.g., two queen beds), the type of accessible bathing facility (e.g., roll-in shower), 25 and communications features available in the room (e.g., alarms and visual notification devices). 26 27 Id. (emphases added). “For older hotels with limited accessibility features,” however, information about accessible entrances to the hotel, the path of 1 travel to guest check-in and other essential services, and the accessible route to the accessible room or rooms. In addition to the 2 room information described above, these hotels should provide information about important features that do not comply with the 3 1991 Standards. 4 Id. (emphases added). In other words, what is required to satisfy the Reservations Rule largely 5 depends on when the hotel was built. Here, because the Hotel was built before 1991 and is not in 6 compliance with the 1991 Standards, the Court must apply the second part of the 2010 Guidance 7 on the Reservations Rule. See Defs.’ Suppl. Br. at 1–2. 8 Mr. Love’s ADA claim fails as a matter of law because the Hotel’s website provides the 9 information required by the 2010 Guidance for older properties built before 1991. Indeed, the 10 Hotel’s website specifies that “due to the historic nature of the hotel, several areas of the property 11 are not accessible for individuals who require mobility assistance,” and more specifically, that “the 12 property is currently not accessible to those requiring wheelchair access.” RJN, Ex. 2 (emphasis 13 added). The website also states that, although there is “[a]n accessible parking space” and 14 “accessible side approach registration desk,” “the path of travel to the guestroom may not be 15 accessible for individuals who require certain types of mobility assistance.” Id. The website is 16 clear: the Hotel is “in the process of building a fully accessible guestroom.” Id. The website also 17 lists the (admittedly incomplete) accessible features that are available in each of the Hotel’s 18 rooms. This information is more than reasonable, under the Reservations Rule, and is sufficient to 19 permit Mr. Love to assess independently whether the hotel and its guest rooms meet his 20 accessibility needs. 21 Mr. Love insists in his supplemental brief that “there needs to be an enhanced level of 22 detail on a hotel website when the facility is NOT compliant.” See Docket No.15 (Mr. Love’s 23 Suppl. Br. at 1.) But his only authority for this proposition is Judge Westmore’s very recent 24 decision in Garcia v. Chancellor Hotel Associates, which is factually distinguishable. See 4:21- 25 cv-01395-KAW (Docket No. 25) (N.D. Cal. June 21, 2021) (Garcia Order). In that case, Judge 26 Westmore concluded that “it is impossible to determine whether a particular room is accessible to 27 Plaintiff” because the hotel’s website “[did] not identify which important features are not 1 currently not accessible to those requiring wheelchair access.” RJN, Ex. 2. Judge Westmore 2 pointed out that the hotel in Garcia did “not provide any information on the width of the doorways 3 leading into accessible guestrooms” or “the accessible route to the accessible room or rooms,” 4 Garcia Order at 7, whereas here the Hotel’s website specifies the rooms have an “[e]ntrance door 5 width of 36”” and “the path of travel to the guestroom may not be accessible for individuals who 6 require certain types of mobility assistance,” RJN, Ex. 2. This information provides sufficiently 7 detailed information for Mr. Love to determine that the Hotel is not accessible to him. Moreover, 8 a phone number is provided should he want to obtain further information. 9 Accordingly, the Court GRANTS Defendants’ motion to dismiss as to Mr. Love’s ADA 10 claim. 11 B. Unruh Act Claim 12 Mr. Love’s Unruh Act claim is predicated on his ADA claim. See FAC ⁋ 45 (“The Unruh 13 Act provides that a violation of the ADA is a violation of the Unruh Act.”). Therefore, [b]ecause 14 [Mr. Love] did not adequately allege a violation of the ADA, he necessarily has not adequately 15 alleged a violation of the Unruh Civil Rights Act.” Whitaker v. Body, Art & Soul Tattoos L.A., 16 LLC, No. 20-55228,

, at *2 (9th Cir. Jan. 25, 2021); see also Whitaker v. Tesla 17 Motors, Inc.,

, 1175 (9th Cir. 2021) (“The Unruh Act is ‘coextensive with the 18 ADA.’ Thus, our analysis of Whitaker’s ADA claim applies equally to his Unruh Act claim.” 19 (quoting Molski, v. M.J. Cable, Inc.,

(9th Cir. 2007)). 20 V. CONCLUSION 21 For the foregoing reasons, the Court takes judicial notice of the Hotel’s website 22 screenshots and GRANTS with prejudice Ashford’s motion to dismiss in its entirety. 23 This order disposes of Docket No. 9. The Clerk shall enter Judgment and close the file. 24 IT IS SO ORDERED. 25 26 Dated: July 12, 2021 27 ______________________________________