1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BRIAN WHITAKER, Case No. 21-cv-00634-KAW

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

10 SAN FRANCISCO AIRPORT SOUTH TL, Re: Dkt. No. 17 L.P., et al., 11 Defendants. 12 13 Plaintiff Brian Whitaker filed the instant suit asserting Defendants San Francisco Airport 14 South TL, L.P. and Ongerth Hospitality Management, Inc. violated the Americans with 15 Disabilities Act (“ADA”) by failing to provide certain information on their hotel reservation 16 website. (First Am. Compl. (“FAC”) ¶ 7, Dkt. No. 14.) Plaintiff also alleges actual barriers based 17 on a single photograph from the hotel’s website. (FAC ¶ 20.) Pending before the Court is 18 Defendants’ motions to dismiss. (Defs.’ Mot. to Dismiss, Dkt. No. 17.) 19 The Court previously deemed this matter suitable for disposition without a hearing 20 pursuant to Civil Local Rule 7-1(b) and vacated the July 1, 2021 hearing. (Dkt. No. 26.) Having 21 considered the parties’ briefing and the relevant legal authorities, the Court GRANTS Defendants’ 22 motions to dismiss. 23 I. BACKGROUND 24 Plaintiff is a quadriplegic who uses a wheelchair for mobility. (FAC ¶ 1.) On January 6, 25 2021, Plaintiff used the Dylan Hotel’s website, seeking to book an accessible room. (FAC ¶ 16.) 26 Plaintiff, however, asserts that the website did not provide sufficient information “to permit him to 27 assess independently whether a given hotel room would work for him.” (FAC ¶ 18.) Specifically, 1 and route from public entrance to accessible guest rooms (at least 32-inches of clear width 2 passage),” “viewpoints at ADA height,” lowered door night cards, “[a]ccessible clear floor space,” 3 lowered electrical outlets, “[a]ccessible bathrooms with grab rails next to toilet and in the tub or 4 roll-in shower,” “[a]djustible shower wand in front of shower and next to bench,” “[t]oilet seat at 5 wheelchair height,” and “[s]ink ADA accessible with lever faucet handle.” (Request for Judicial 6 Notice (“RJN”), Exh. 1 at 3, Exh. 2 at 2, Dkt. No. 17-2.) The website also states that there are 7 accessible parking spaces and signage, an accessible route into the hotel, and an accessible lobby 8 entrance with automated doors or ADA push plates. (RJN, Exh. 1 at 3.) 9 Plaintiff also alleges that the Dylan Hotel does not have an accessible roll-in shower based 10 on a photograph. (FAC ¶ 20.) Plaintiff asserts that the photograph demonstrates that the shower is 11 neither roll-in nor accessible because it lacks a 60-inch minimum clearance and a foldable, bolted 12 seat. (FAC ¶¶ 22-23.) 13 On January 27, 2021, Plaintiff filed his initial complaint, asserting that Defendants’ 14 website violated

(e)(1), or the Reservations Rule. (Compl. ¶ 32, Dkt. No. 1.) 15 On March 12, 2021, Defendants filed a motion to dismiss. (Dkt. No. 8.) In lieu of opposing the 16 motion, Plaintiff filed the operative complaint, adding the allegations regarding the photograph. 17 On April 14, 2021, Defendants filed the instant motion to dismiss, which Plaintiffs opposed. (Pl.’s 18 Opp’n, Dkt. No. 18.) On May 7, 2021, Defendants filed their reply. (Defs.’ Reply, Dkt. No. 19.) 19 While the instant motion was being briefed, the Court granted similar motions to dismiss in 20 Case No. 21-cv-119-KAW, Arroyo v. SC Landmark Hotels, LLC, Case No. 21-cv-338-KAW, Rios 21 v. RLJ C San Francisco, LP, and Case No. 21-cv-431-KAW, Arroyo v. Independence Menlo Hotel 22 Owner, LLC. (See Case No. 21-cv-119-KAW, Dkt. No. 22 (“SC Landmarks Dismissal Order”).) 23 The Court dismissed those cases with prejudice for failure to allege a violation of the Reservations 24 Rule. (See

.) Accordingly, on May 18, 2021, the Court issued an order to show cause in 25 this case, stating that it intended to dismiss the Reservation Rule claims. (Order to Show Cause 26 (“OSC”) at 1, Dkt. No. 21.) The Court ordered Plaintiff to explain how the instant case was 27 distinguishable from the other cases, and why a photograph could establish an ADA violation 1 show cause. (Pl.’s OSC Response, Dkt. No. 22.) That same day, Defendants filed their response 2 to the order to show cause. (Defs.’ OSC Response, Dkt. No. 23.) 3 On June 3, 2021, the Court ordered the parties to file a status report regarding whether the 4 case should be stayed pending appeals to the Ninth Circuit in similar Reservation Rule cases. 5 (Dkt. No. 24.) On June 17, 2021, the parties filed a joint status report, in which Plaintiff supported 6 a stay and Defendants opposed the stay. (Status Report. Dkt. No. 25.) 7 II. DISCUSSION 8 A. Stay 9 “[T]he power to stay proceedings is incidental to the power inherent in every court to 10 control the disposition of the causes on its docket with economy of time and effort for itself, for 11 counsel, and for litigants.” Landis v. N. Am. Co.,

(1936). Whether to stay 12 proceedings is entrusted to the district court’s discretion. See

. In deciding whether 13 to stay proceedings, the district court must weigh various competing interests, including the 14 possible damage which may result from granting a stay, the hardship a party may suffer if the case 15 is allowed to go forward, and “the orderly course of justice measured in terms of the simplifying 16 or complicating of issues, proof, and questions of law which could be expected to result from a 17 stay.” Lockyer v. Mirant Corp.,

(9th Cir. 2005). 18 The Court finds that a stay is not appropriate in this case. Plaintiff has not demonstrated 19 that he would suffer any hardship or inequity in going forward.1 For example, Plaintiff asserts that 20 absent a stay, the parties would have to expend resources on briefing the motion to dismiss. 21 (Status Report at 5.) The motion to dismiss, however, is already fully briefed. Likewise, Plaintiff 22 argues that if the motion to dismiss is denied, the parties would have to expend substantial 23 resources on discovery, dispositive motions, and trial. (Id.) As the Court is granting the motion to 24 dismiss, such concerns are not at issue. 25 Plaintiff also notes that the Ninth Circuit’s resolution of the appeals will simplify the issue. 26 (Status Report at 7.) The Court, however, has already ruled on the Reservations Rule issue, and its 27 1 ruling is consistent with almost all other courts who have decided the issue. Further, Defendants 2 have identified harm that they would suffer from not having the motion to dismiss determined, 3 including that having the case open “is a cloud on Defendant’s business and must be carried as a 4 contingent liability.” (Id. at 9.) Accordingly, the Court finds that a stay is not warranted. 5 B. Request for Judicial Notice 6 Defendants ask that the Court take judicial notice of: (1) the “Landing page” and 7 accessibility tab of Defendants’ website, (2) the relevant pages from Defendants’ website showing 8 the accessible room description, (3) a list of Plaintiff’s cases filed in California federal court, (4) 9 the consent decree in United States v. Hilton Worldwide, Inc., No. 10-cv-1924, (5) various 10 dismissal orders issued in similar Reservation Rule cases filed by Plaintiff’s counsel, and (6) the 11 accessibility page at issue in Arroyo v. JWMFE Anaheim, LLC, Case No. 8:21-cv-14-CJC-KES. 12 With respect to the websites, “[i]n general, websites and their contents may be judicially 13 noticed.” Threshold Enters. v. Pressed Juicery, Inc.,

, 146 (N.D. Cal. 2020). 14 Further, these websites are specifically cited in the complaint, and there is no dispute as to their 15 authenticity and relevance as Plaintiffs do not object to judicial notice of Defendants’ website 16 pages. (See Pl.’s Opp. at 7.) 17 As to the list of Plaintiffs’ previously filed cases, the Court finds that this is not relevant to 18 the merits of the pending motions. 19 Finally, the Hilton consent decree and dismissal orders are court documents already in the 20 public record. Courts “may take judicial notice of court filings and other matters of public 21 record.” Reyn’s Pasta Bella, LLC v. Visa USA, Inc.,

, 746 n.6 (9th Cir. 2006). 22 Accordingly, the Court GRANTS Defendants’ request for judicial notice, except as to the 23 list of Plaintiff’s previously filed cases. 24 C. Dismissal 25 Having considered the parties’ briefing, including their responses to the order to show 26 cause, the Court concludes that Plaintiff has not shown cause why the Reservations Rule claim 27 should not be dismissed for the same reasons as stated in SC Landmarks. Plaintiff argues that the 1 accessibility,” as opposed to the SC Landmarks website that had “34 bulleted items which mention 2 accessibility.” (Pl.’s OSC Response at 2.) Plaintiff, however, cites no authority that there is a 3 minimum number of bulleted items that must mention accessibility; rather, the issue is whether 4 Defendants have provided sufficient information. The Court finds that it has. Defendants have 5 provided the type of information that the Department of Justice stated should satisfy the 6 Reservations Rule in its 2010 Guidance, including the general type of room, the type of bed, the 7 type of accessible bathing facility, and the communication features available in the room. The 8 website then goes beyond the recommended information, describing “[a]ccessible doorways and 9 route from public entrance to accessible guest rooms (at least 32-inches of clear width passage,” 10 “[a]ccesible clear floor space,” lowered electrical outlets, “[a]ccessible bathrooms with grab rails 11 next to toilet and in the tub or roll-in shower,” “[a]djustible shower wand in front of shower and 12 next to bench,” “[t]oilet seat at wheelchair height,” and “[s]ink ADA accessible with lever faucet 13 handle.” (RJN Exh. 2 at 2.) Notably, many of these descriptions provide information that 14 Plaintiff complains are missing, including the bed clearance and the accessibility of the sink. To 15 the extent Plaintiff argues other information is required, the Court found in SC Landmarks that 16 “the Reservations Rule was not intended to be an accessibility survey, and Plaintiffs cite no 17 binding authority that additional information is required, let alone the specific dimensions that 18 Plaintiffs would require.” (SC Landmarks Dismissal Order at 10.) Such remains the case. 19 Further, to the extent Plaintiff again complains that “Defendant[s] simply labeling a bunch 20 of common areas as ‘accessible’ does not allow a person ‘to assess independently whether a given 21 hotel or guest room meets his or her accessibility needs,” the Court already rejected this argument. 22 (Pl.’s OSC Response at 2.) Specifically, the Court explained:

23 Contrary to Plaintiffs’ argument that labeling a feature “accessible” is a “naked conclusion [that] provides no actual information,” the 24 term “accessible” is not merely a “one-word adjective.” (See [Pl.’s] Opp. at 13.) Rather, “the term ‘accessible’ is specifically defined in 25 the ADAAG to describe ‘a site, building, facility, or portion thereof that complies with these guidelines.’” Chamber Maid L.P., 2021

, at *12 (quoting 1991 ADAAG § 3.5); see also Garcia v. E.L. Heritage Inn of Sacramento, LLC, Case No. 20- 27 cv-2191-JAM-AC,

, at *2 (E.D. Cal. Apr. 5, with the ADAAG. See

1 2 (SC Landmarks Dismissal Order at 10.) Accordingly, the Court finds that Defendants’ website 3 satisfies the Reservations Rule, and Plaintiff’s claim fails as a matter of law. (See

.) 4 As to whether a photograph can establish a violation and/or Plaintiff’s standing, Plaintiff 5 argues that because he has “actually encountered a barrier (an accessible hotel website), he has 6 standing to sue over any other barrier he becomes aware of.” (Pl.’s OSC Response at 6.) As 7 discussed above, Plaintiff has not pled a violation of the Reservations Rule. Thus, Plaintiff lacks 8 standing to sue based on the alleged barriers in the photograph because Plaintiff has not actually 9 encountered that or any other barrier. 10 The Court also observes that it is not apparent to the Court that a violation can be 11 established by a photograph when a plaintiff does not visit the facility. See Love v. Wildcats 12 Owner LLC, Case No. 20-cv-8913-DMR,

, at *21 n.3 (N.D. Cal. 13 Apr. 5, 2021) (“If a hotel represents that its features are accessible when they are in fact not 14 compliant with the Standards, the hotel would be liable for violating the Reservations Rule and 15 possibly for structural ADA violations. The only difference is that a plaintiff would have to 16 physically visit the hotel in order to know that its reservation system violates the Reservations 17 Rule.”). Courts in this district have found that a “[p]laintiff’s independent conclusion that [a 18 h]otel is not ADA-compliant, based solely on his own review of website photographs, is merely 19 conjectural and does not demonstrate actual knowledge of illegal barriers.” Strojnik v. Four 20 Sisters Inns, Inc., Case No. 19-cv-2991-ODW (JEMx),

, at *12 21 (C.D. Cal. Dec. 9, 2019). 22 In Strojnik v. Victus Group, Inc., the district court found insufficient allegations of 23 knowledge of the alleged barriers based on photographs, explaining that “it is not clear what the 24 source of the pictures are, whether the pictures concern rooms that are intended to be ADA 25 compliant, or whether [the plaintiff] confirmed the existence of the barrier with [the hotel].” Case 26 No. 18-cv-1620-AWI (SKO),

, at *8 (E.D. Cal. May 27, 2020). 27 Similarly, Plaintiff here does not explain where he obtained the photo, and it is not clear to the 1 compliant facilities are not available. Compare with Strojnik v. Pasadena Robles Acquisition, 2 LLC, Case No. 19-cv-2067-AB (PJWx),

, at *4n.1 (C.D. Cal. Aug. 3 14, 2019) (“while Plaintiff presents photos of allegedly inaccessible rooms and vending machines, 4 || for example, this does not mean that Defendants did not have other rooms and other vending 5 || machines that are accessible’’). 6 The Court therefore dismisses Plaintiffs claims with prejudice, including the Unruh Act 7 claim. See Arroyo v. Dorcich Farms, LLC, Case No. 20-cv-8216-LHK,

|| 70427, at *3 (N.D. Cal. Apr. 12, 2021) (“Plaintiffs Unruh Civil Rights Act claim must be 9 || dismissed because it is dependent on Plaintiff's meritless ADA claim.”). 10 Hl. CONCLUSION 11 For the reasons stated above, the Court GRANTS Defendants’ motion to dismiss with 12 || prejudice. 5 13 IT IS SO ORDERED. || Dated: July 30, 2021

A 16 United States Magistrate Judge

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