1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA
7 CHRIS LANGER, Case No. 21-cv-04159-PJH 8 Plaintiff,
9 v. ORDER OF DISMISSAL
10 MUSIC CITY HOTEL LP, et al., Re: Dkt. No. 14 11 Defendants. 12
13 14 Defendants’ motion to dismiss came on for hearing before this court on December 15 2, 2021. Plaintiff appeared through his counsel, Cara P. Townsend. Defendants 16 appeared through their counsel, Philip H. Stillman. Having read the papers filed by the 17 parties and carefully considered their arguments and the relevant legal authority, and 18 good cause appearing, the court hereby rules as follows. 19 I. BACKGROUND 20 This is an Americans with Disabilities Act (“ADA”) case premised on a hotel’s 21 alleged violation of the “Reservations Rule,” 28 C.F.R. section 36.302(e). Plaintiff Chris 22 Langer identifies as an individual with physical disabilities, and he uses a wheelchair for 23 mobility. FAC ¶ 1. Plaintiff also suffers from Delayed Endolymphatic Hydrops (DEH), 24 which has caused permanent partial hearing loss. FAC ¶ 1. Defendants Music City 25 Hotel, LP, and Pacific Equities West, LLC, together own and operate the Music City Hotel 26 located at 1353 Bush St, San Francisco, California. FAC ¶ 2. 27 Plaintiff requires an accessible guestroom when staying at a hotel. FAC ¶ 14. 1 closed captioning when consuming audio content. FAC ¶ 2, 14. Plaintiff considered 2 making a reservation to stay at the Music City Hotel (“Hotel”) for a trip to the San 3 Francisco area planned in September 2020. FAC ¶¶ 12, 13. When visiting the Hotel’s 4 website located at https://musiccityhotel.org/ on February 6, 2020, plaintiff found the 5 accessibility information insufficient to “assess independently” if a particular hotel room 6 would meet his needs. FAC ¶¶ 16, 18. 7 Plaintiff contends that the website did not comply with the Reservations Rule 8 because it provided “insufficient information about the accessible features in the 9 ‘accessible rooms’ at the Hotel to permit him to assess independently whether a given 10 hotel room would work for him.” FAC ¶ 18. Plaintiff complains that the Hotel’s 11 reservation website “fails to describe or provide details about the accessibility features in 12 the guestrooms or any details such as accessible bathtub, shower, toilet, grab bars, 13 lavatory sink, and accommodations for the hearing impaired.” FAC ¶ 19. 14 Procedural History 15 Plaintiff filed the original complaint in this lawsuit on June 1, 2021. Dkt. 1. 16 Defendants responded with a motion to dismiss on September 1, 2021. Dkt. 10. Rather 17 than opposing defendants’ motion, plaintiff filed a First Amended Complaint (“FAC”, the 18 now-operative complaint), on September 24, 2021, after the deadline for the opposition 19 brief. Dkt. 11&12. The court granted defendants’ motion to dismiss and permitted the 20 FAC to stand because leave to amend would have been granted if the motion had been 21 fully argued. Dkt. 13. 22 The FAC alleges one cause of action for violation of the Americans with 23 Disabilities Act of 1990 (“ADA”) (FAC ¶¶ 36-39), and one cause of action for violation of 24 California’s Unruh Civil Rights Act (FAC ¶¶ 40-43). As to the ADA claim, plaintiff 25 requests injunctive relief—the only form of relief the ADA affords private plaintiffs. FAC, 26 Prayer ¶¶ 1-4; see also Oliver v. Ralphs Grocery Co., 654 F.3d 903, 905 (9th Cir. 2011); 27 42 U.S.C. § 12188(a). Plaintiff also seeks an unspecified amount of statutory damages 1 Defendants filed the instant motion to dismiss pursuant to Federal Rule of Civil 2 Procedure 12(b)(6) on October 18, 2021. Dkt. 14. Defendants ask the court to grant 3 their request for judicial notice and to dismiss the FAC with prejudice. 4 II. LEGAL STANDARDS 5 A. Rule 12(b)(6) Motion to Dismiss 6 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the 7 legal sufficiency of the claims alleged in the complaint. Ileto v. Glock, 349 F.3d 1191, 8 1199-1200 (9th Cir. 2003). Under Federal Rule of Civil Procedure 8, which requires that 9 a complaint include a “short and plain statement of the claim showing that the pleader is 10 entitled to relief,” Fed. R. Civ. P. 8(a)(2), a complaint may be dismissed under Rule 11 12(b)(6) if the plaintiff fails to state a cognizable legal theory, or has not alleged sufficient 12 facts to support a cognizable legal theory. Somers v. Apple, Inc., 729 F.3d 953, 959 (9th 13 Cir. 2013). 14 While the court is to accept as true all the factual allegations in the complaint, 15 legally conclusory statements, not supported by actual factual allegations, need not be 16 accepted. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). The complaint must proffer 17 sufficient facts to state a claim for relief that is plausible on its face. Bell Atl. Corp. v. 18 Twombly, 550 U.S. 544, 555, 558-59 (2007). 19 “A claim has facial plausibility when the plaintiff pleads factual content that allows 20 the court to draw the reasonable inference that the defendant is liable for the misconduct 21 alleged.” Iqbal, 556 U.S. at 678 (citation omitted). “[W]here the well-pleaded facts do not 22 permit the court to infer more than the mere possibility of misconduct, the complaint has 23 alleged—but it has not ‘show[n]’—that the pleader is entitled to relief.” Id. at 679. Where 24 dismissal is warranted, it is generally without prejudice, unless it is clear the complaint 25 cannot be saved by any amendment. Sparling v. Daou, 411 F.3d 1006, 1013 (9th Cir. 26 2005). 27 Review is generally limited to the contents of the complaint, although the court can 1 authenticity no party questions, but which are not physically attached to the plaintiff's 2 pleading.” Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (citation omitted). The 3 court may also consider matters that are properly the subject of judicial notice. Lee v. 4 City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). 5 B. Mootness 6 The court has an ongoing obligation to ensure that it has subject matter jurisdiction 7 such that “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the 8 court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). “[A]n actual controversy must be 9 extant at all stages of review, not merely at the time the complaint is filed.” Arizonans for 10 Official English v. Arizona, 520 U.S. 43, 67 (1997). Thus, courts must raise issues 11 concerning subject matter jurisdiction, which include mootness, sua sponte. Bernhardt v. 12 Cty. of Los Angeles, 279 F.3d 862, 871 (9th Cir. 2002). Courts may look beyond the 13 pleadings for purposes of analyzing subject matter jurisdiction. See Fed. R. Civ. P. 12(d); 14 see also Foote v. Wells Fargo Bank, N.A., No. 15-cv-04465-EMC, 2016 WL 2851627, at 15 *4 (May 16, 2016). 16 “A case is moot when the issues presented are no longer ‘live’ or the parties lack a 17 legally cognizable interest in the outcome.” City of Erie v. Pap’s A.M., 529 U.S. 277, 287 18 (2000). “In other words, the central issue in mootness is whether circumstances that 19 existed at the time of filing the complaint have changed and forestalled the possibility of 20 meaningful relief.” Greene v. Wells Fargo Bank, N.A., No. 18-CV-06689-JSC, 2019 WL 21 3220267, at *2 (N.D. Cal. July 17, 2019). A case is thus moot if a defendant voluntarily 22 ceases the challenged conduct in a way that makes it “absolutely clear that the allegedly 23 wrongful behavior could not reasonably be expected to recur.” Adarand Constructors, 24 Inc. v Slater, 528 U.S. 216, 221 (2000). The question is not whether there is any possible 25 relief, but whether there can be any effective relief. West v. Sec. of Dept. of Transp., 206 26 F.3d 920, 925 (9th Cir. 2000). 27 III. DISCUSSION 1 plaintiff fails to allege a plausible violation of the ADA given the website’s disclosures, 2 which defendants argue are compliant with the Reservations Rule’s requirements for 3 older hotels. Plaintiff argues that the version of the website offered by defendants, 4 including the compliant disclosures, has been changed since his initiation of the lawsuit. 5 His complaint was based on a version of the website that did not include such 6 disclosures, suggesting that defendants voluntarily ceased their non-conforming conduct. 7 In their reply brief, defendants raised for the first time that plaintiff’s ADA claim is now 8 moot regardless of when the website included the language describing the hotel’s lack of 9 accessibility. Dkt. 16. at 9-11. The court invited plaintiff to submit a supplemental brief 10 responding to this late-raised argument and addressing the issue of mootness. Dkt. 20. 11 Plaintiff did so. Dkt. 21.1 12 The arguments thus leave four issues for discussion: (1) whether the documents 13 offered by defendants may be judicially noticed and for what purpose, (2) whether 14 defendants’ website, as it currently reads, provides sufficient accessibility descriptions to 15 comport with the Reservations Rule, (3) whether the ADA claim should be dismissed as 16 moot, and (4) whether, after concluding the ADA claim is moot, the court should retain 17 jurisdiction over the state Unruh Act claim. 18 A. Request for Judicial Notice 19 Federal Rule of Evidence 201 permits a court to notice a fact if it is “not subject to 20 reasonable dispute.” Fed. R. Evid. 201(b). A fact is “not subject to reasonable dispute” if 21 it is “generally known,” or “can be accurately and readily determined from sources whose 22 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(1)-(2). 23 Defendants request that the court take judicial notice of the following materials in 24 support of their motion (Dkt. 14-2): 25 1. A copy of the Landing page, Accessibility Page, Room Descriptions page, and 26
27 1 Though defendants’ motion is brought under Rule 12(b)(6), the court may address the 1 Contact Information page of defendants’ website, referred to in the complaint, 2 https://musiccityhotel.org/. RJN Ex. 1 (Dkt. 14-2 at 4-9). 3 2. A copy of the parcel record for the Music City Hotel located at 1353 Bush St, 4 San Francisco, California. This record is a print-out from the San Francisco 5 Planning Department webpage at (https://sfplanninggis.org/pim/?pub=true). 6 RJN Ex. 2 (Dkt. 14-2 at 10-11). 7 3. A copy of the Consent Order entered in U.S. v. Hilton Worldwide Inc., No. 10- 8 1924, ECF No. 5 (D.D.C. Nov. 29, 2010). RJN Ex. 3 (Dkt. 14-2 at 12-56). 9 Generally, a court may consider factual information from the internet as long as 10 the facts are not subject to reasonable dispute. See, e.g., Perkins v. LinkedIn Corp., 53 11 F.Supp.3d 1190, 1204 (N.D. Cal. 2014). Further, the court may consider not only 12 documents attached to the complaint, but also documents whose contents are alleged in 13 the complaint, provided the complaint “necessarily relies” on the documents or contents 14 thereof, the document’s authenticity is uncontested, and the document’s relevance is 15 uncontested. Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010); United 16 States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). “The defendant may offer such a 17 document, and the district court may treat such a document as part of the complaint, and 18 thus may assume that its contents are true for purposes of a motion to dismiss under 19 Rule 12(b)(6).” Ritchie, 342 F.3d at 908. The purpose of this rule is to “prevent plaintiffs 20 from surviving a Rule 12(b)(6) motion by deliberately omitting documents upon which 21 their claims are based.” Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (per 22 curiam) (internal marks omitted). 23 Here, the contents of defendants’ website are the essence of the suit—plaintiff 24 questions whether the website contains insufficient information regarding accessibility 25 features, so the complaint necessarily relies on the website. Plaintiff contests the 26 authenticity of this copy of defendants’ website, however. Plaintiff’s brief opposing the 27 motion to dismiss avers that the version of the website offered by defendants is different 1 a move of questionable ethicality, the defense submits a reservation webpage screen 2 shot of the current version of the webpage without informing the Court that it was 3 changed after the lawsuit was filed.”). Plaintiff includes its own screenshots of (1) the 4 version plaintiff initially encountered, giving rise to this action, and (2) the changed 5 version defendants submit attached to their request for judicial notice, which adds the 6 following disclaimer:
7 Due to the historic nature of the hotel and building (built in 1907), our building is unfortunately not accessible to those 8 requiring wheelchair access. The hotel lodging rooms are located on levels 3 and 4 of the building and require walking up 9 2 flights of stairs to reach any of the guest rooms. The building does not have any elevator. 10 The Hotel may be accessible to those who use a cane or walker, provided that they have the ability to climb 2 flights of 11 stairs. Most of our rooms have shared bathrooms, and one of the shared bathrooms does have grab bars installed around the 12 toilet and bath. 13 Dkt. 15 at 9. Though the parties contest the authenticity of the document offered as 14 exhibit 1 to defendants’ request for judicial notice, the website provided by defendants is 15 readily verifiable using the same URL identified in plaintiff’s complaint. Plaintiff does not 16 dispute that the website information matches what can currently be found on defendants’ 17 site, and the unverified screenshot pasted in plaintiff’s opposition brief does not create a 18 reasonable dispute to preclude judicial notice. Therefore, the court grants the request for 19 judicial notice of the information on defendants’ website for the limited purpose of 20 acknowledging the current contents of the website. 21 The court may also judicially notice court documents already in the public record 22 and filed in other courts. Holder v. Holder, 305 F.3d 854, 866 (9th Cir. 2002); see also 23 Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (courts 24 “may take judicial notice of court filings and other matters of public record”). 25 The second exhibit submitted by defendants in support of their motion to dismiss is 26 a parcel record print-out from the San Francisco Planning Department webpage. That 27 document is relied upon by defendants to demonstrate the date of the Hotel’s 1907 1 elsewhere that defendants do not request that the court take notice of the building’s 2 “historical designation.” Dkt. 15 at 5. Because it is an official government record from a 3 government website, the court may take judicial notice of it. Cota v. Maxwell-Jolly, 688 F. 4 Supp. 2d 980, 998 (N.D. Cal. 2010) (“The Court may properly take judicial notice of the 5 documents appearing on a governmental website.”). 6 The third and final exhibit submitted by defendants in support of their motion to 7 dismiss is the 2010 consent decree in an ADA case from the U.S. District Court for the 8 District of Columbia. United States v. Hilton Worldwide, Inc., No. 10-1924, ECF No. 5 9 (D.D.C. Nov. 29, 2010). The court does not consider this exhibit in deciding this motion, 10 and it therefore denies as moot the request for judicial notice of the exhibit. 11 B. Reservations Rule Compliance 12 Title III of the ADA prohibits discrimination against disabled individuals in public 13 accommodations. 42 U.S.C. § 12182(a). To recover on an ADA discrimination claim, 14 plaintiffs must prove that (1) they are disabled within the meaning of the statute, (2) the 15 defendants are private entities that own, lease, or operate a place of public 16 accommodation, and (3) the plaintiffs were denied public accommodation by the 17 defendants because of their disability. Arizona ex rel. Goddard v. Harkins Amusement 18 Enters., Inc., 603 F.3d 666, 670 (9th Cir. 2010). 19 The ADA applies to websites that “impede[ ] access to the goods and services of . 20 . . places of public accommodation.” Robles v. Domino’s Pizza LLC, 913 F.3d 898, 905 21 (9th Cir. 2019), cert. denied, 140 S. Ct. 122 (2019). The so-called “Reservations Rule,” 22 28 C.F.R. section 36.302(e), requires a hotel to:
23 Identify and describe accessible features in the hotels and guest rooms offered through its reservations service in enough 24 detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his 25 or her accessibility needs. 26 28 C.F.R. § 36.302(e)(1)(ii). 27 The Department of Justice (“DOJ”) issued commentary to the Reservations Rule 1 28 C.F.R. Pt. 36, App. A, “Title III Regulations 2010 Guidance and Section-by-Section 2 Analysis” (“Guidance”). The Guidance explains,
3 For hotels that were built in compliance with the 1991 Standards it may be sufficient to specify that the hotel is 4 accessible and, for each accessible room, to describe the general type of room (e.g., deluxe executive suite), the size and 5 number of beds (e.g., two queen beds), the type of accessible bathing facility (e.g., roll-in shower), and communications 6 features available in the room (e.g., alarms and visual notification devices). Based on that information, many 7 individuals with disabilities will be comfortable making reservations. 8 Id. “For older hotels with limited accessibility features,” however, 9 information about the hotel should include, at a minimum, 10 information about accessible entrances to the hotel, the path of travel to guest check-in and other essential services, and the 11 accessible route to the accessible room or rooms. In addition to the room information described above, these hotels should 12 provide information about important features that do not comply with the 1991 Standards. 13 Id. 14 The Guidance also notes that “individuals with disabilities may wish to contact the 15 hotel or reservations service for more detailed information” at which point hotel staff 16 “should be available to provide additional information such as the specific layout of the 17 room and bathroom, shower design, grab-bar locations and other amenities available.” 18 28 C.F.R. Pt. 36, App. A. The Guidance is entitled to substantial deference. Arroyo v. 19 AJU Hotel Silicon Valley, LLC, No. 20-cv-08218-JSW, Dkt. 24 at 4 (N.D. Cal. Mar. 16, 20 2021); see also Kohler v. Presidio Int’l, Inc., 782 F.3d 1064, 1069 (9th Cir. 2015). 21 Numerous courts have agreed that the Reservations Rule is not intended to 22 require an accessibility survey and that the Reservations Rule does not require a hotel to 23 include all potentially relevant accessibility information on its website. See Barnes v. 24 Marriott Hotel Servs., Inc., No. 15-cv-01409-HRL, 2017 WL 635474 at *10 (N.D. Cal. Feb. 25 16, 2017) (finding website with ADA designation and general “accessible room” 26 descriptions appropriate and acceptable under the DOJ's guidance); Strojnik v. 1315 27 Orange LLC, No. 19-cv-1991-LAB-JLB, 2019 WL 5535766, at *2 (S.D. Cal. Oct. 25, 1 2019) (granting motion to dismiss noting that plaintiff failed to cite any authority 2 “suggesting a hotel has an obligation to describe to the public the physical layout of its 3 rooms in exhaustive detail without being asked”); Rutherford v. Evans Hotels, LLC, 2020 4 WL 5257868, at *17 (S.D. Cal. Sept. 3, 2020) (“[J]ust because [plaintiff] would like 5 additional details does not mean that he is entitled to it under Section 36.302(e)(1)(ii)”). 6 Here, defendants argue that plaintiff’s ADA claim fails because the Hotel’s website 7 plainly states that the facility does not have an elevator and is not accessible for persons 8 with mobility disabilities. Defendant draws the attention of the court to the multitude of 9 Reservations Rule cases (many brought by the same plaintiff and his counsel) where the 10 main violation of the ADA is insufficient detail on hotel websites. Nearly all of that 11 precedent, however, addresses websites that provide some minimal reference to 12 accessibility features. This website, in contrast, identifies the Hotel’s complete lack of 13 accessibility features. Thus, in substantial part, plaintiff is correct in its distinction of the 14 facts of this case from many of the previous 87 Reservation Rule cases cited by 15 defendants. 16 However, given the age of the Hotel (constructed in 1907), a greater level of 17 specificity regarding the accessible features in guestrooms is not required. See Dkt. 14-2 18 at 11. Defendants’ website meets the bare requirements of the standard “[f]or older 19 hotels with limited accessibility features.” 28 C.F.R. Pt. 36, App. A. There is no need for 20 defendants to demonstrate that the Hotel received a special historic designation—the 21 date of the building’s construction, demonstrated through government-maintained parcel 22 records, is sufficient to show that the Hotel is an “older” facility in the ADA context. The 23 description offered in the judicially-noticed screenshot of the website provides 24 “information about accessible entrances to the hotel, the path of travel to guest check-in 25 and other essential services, and the accessible route to the accessible room or rooms” 26 where it states plainly that there are no such accessible paths in the building. Id.; Dkt. 27 14-2 at 6. Defendants’ website additionally complies with the Guidance where it includes 1 further inquiries regarding accessibility specifics. See RJN Ex. 1 (Dkt. 14-2 at 6) (“If you 2 have any questions regarding the accessibility of our hotel, please contact us 3 immediately with any questions” by telephone or email). Plaintiff fails to identify authority 4 that requires details beyond the descriptions provided here, and defendants’ website 5 accordingly satisfies the requirements of the Reservations Rule. 6 Plaintiff fails to identify authority that requires additional description even to 7 address accessibility features related to his auditory disability. Plaintiff cites to an ADA 8 regulation requiring that “alterations to floors above and below the accessible ground 9 floor must be accessible regardless of whether the altered facility has an elevator.” 28 10 C.F.R. § 36.404(b). His reliance on that part of the regulations is inapplicable and 11 unavailing. That section of the regulations specifically addresses an exemption for the 12 addition of elevators in alterations to pre-1991-constructed buildings and fails to stand for 13 the larger theme he seeks to create. 14 Therefore, Langer faces the same result here as he faced in state court: “Given 15 that Plaintiff utilizes a wheelchair for mobility, his contention in his boilerplate complaint 16 that the website does not provide sufficient information for him to determine ‘whether any 17 of the guestrooms would work for him’ [citation] is demonstrably inaccurate: it does, and 18 they would not.” Langer v. Martin A. Neely et al., Case No. CGC-21-593428 (San 19 Francisco Sup. Ct. October 25, 2021). 20 C. Mootness of Americans with Disabilities Act Claim 21 Because injunctive relief is the only relief available to private ADA plaintiffs, a 22 plaintiff alleging ADA violations must establish standing to pursue injunctive relief. 23 “Standing for injunctive relief requires a plaintiff to establish a ‘real and immediate threat 24 of repeated injury.’” Strojnik v. IA Lodging Napa First LLC, No. 19-CV-03983-DMR, 2020 25 WL 2838814, at *5 (N.D. Cal. June 1, 2020) (quoting Fortyune v. Am. Multi-Cinema, Inc., 26 364 F.3d 1075, 1081 (9th Cir. 2004)). Ninth Circuit case law establishes that an ADA 27 plaintiff may establish standing “either by demonstrating deterrence, or by demonstrating 1 1 Imports (U.S.) Inc., 631 F.3d 939, 944 (9th Cir. 2011). 2 A claim may become moot if (1) subsequent events have made it clear that the 3 allegedly wrongful behavior cannot reasonably be expected to recur, and (2) interim relief 4 or events have completely and irrevocably eradicated the effects of the alleged violation. 5 Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1274 (9th Cir. 1998). In 6 the context of a complaint brought under the ADA, “because a private plaintiff can sue 7 only for injunctive relief (i.e., for removal of the barrier) under the ADA, a defendant’s 8 voluntary removal of alleged barriers prior to trial can have the effect of mooting a 9 plaintiff's ADA claim.” Oliver, 654 F.3d at 905; see also Johnson v. Oishi, 362 F. Supp. 10 3d 843, 848 (E.D. Cal. 2019) (“[D]efendant’s voluntary cessation of an ADA violation may 11 effectively moot a plaintiff’s ADA claim”). 12 “It is well settled that a defendant’s voluntary cessation of a challenged practice 13 does not deprive a federal court of its power to determine the legality of the practice.” 14 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) 15 (citations omitted). “In accordance with this principle, the standard we have announced 16 for determining whether a case has been mooted by the defendant’s voluntary conduct is 17 stringent: A case might become moot if subsequent events made it absolutely clear that 18 the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of 19 the Earth, Inc., 528 U.S. at 189 (citations and internal quotation marks omitted). “The 20 heavy burden of persua[ding] the court that the challenged conduct cannot reasonably be 21 expected to start up again lies with the party asserting mootness.” Id. (citations and 22 internal quotation marks omitted). “When determining whether behavior can reasonably 23 be expected to recur, courts consider various issues, such as the (a) motivation behind 24 the conduct, (b) reasons for the change in conduct, (c) volitional nature of the conduct, 25 (d) length of time between the change in conduct and the complaint, and (e) ownership 26 status of the defendant in relation to the property.” Langer v. G.W. Properties, L.P., No. 27 15-CV-02443-BAS(BLM), 2016 WL 3419299, at *4 (S.D. Cal. June 21, 2016) (citing 1 In assessing the applicability of the “voluntary cessation” doctrine in ADA cases, 2 “[c]ourts have held that where structural modifications are made, then it is absolutely 3 clear the allegedly wrongful behavior could not reasonably be expected to occur in the 4 future since structural modification[s] undo the offending conduct.” Zaldivar v. City of San 5 Diego, 2016 WL 5118534, at *10 (S.D. Cal. Sept. 21, 2016). “When considering non- 6 structural features, on the other hand, courts have found that ‘voluntary remediation of’ 7 these violations do ‘not moot an issue’ because the violations ‘could easily reoccur.’” 8 Moore v. Saniefar, No. 1:14-CV-01067-SKO, 2017 WL 1179407, at *6 (E.D. Cal. Mar. 29, 9 2017) (quoting Zaldivar, 2016 WL 5118534, at *10). Nonetheless, “[i]n making a 10 determination about whether the facts indicate a danger of future violations . . . , [courts] 11 consider[ ] the bona fides of the expressed intent to comply, the effectiveness of the 12 discontinuance and, in some cases, the character of the past violations.” Watanabe v. 13 Home Depot USA, Inc., 2003 WL 24272650, at *4 (C.D. Cal. July 14, 2003) (citation 14 omitted). 15 “But just because a change made by a defendant is nonphysical/nonstructural in 16 nature does not mean that mootness cannot be found.” Whitaker v. Montes, No. 21-CV- 17 00679-EMC, 2021 WL 5113218, at *5 (N.D. Cal. Nov. 3, 2021). In Montes, another 18 Reservations Rule case involving a hotel website, Judge Chen found that the defendant’s 19 amendment of its website to provide additional information about accessibility effectively 20 mooted the plaintiff’s ADA claim. Id. at *6. Despite the hotel’s “heavy burden” to 21 establish mootness, it demonstrated its intent to comply with the ADA by taking prompt 22 action to update its website after initiation of the lawsuit, and even though the website 23 was easily changed, the hotel had little incentive to remove the accessibility information. 24 Id. at *6 (“Simply put, the Hotel has no incentive to take its accessibility information down 25 and has every incentive to continue to insure its compliance with the ADA if for no other 26 reason than preventing further suit and legal liability.”). 27 Here, having judicially noticed the current state of defendants’ website, the court 1 plaintiff’s charge that the current iteration of the website is different from the version upon 2 which he originally filed his complaint, defendants apparently voluntarily changed their 3 website to provide improved accessibility information. As discussed above, these 4 changes effectively eradicated the effects of the alleged violation of the Reservations 5 Rule. Defendants apparently made such change soon after the case was initiated, prior 6 to filing a responsive pleading.2 Plaintiff fails to offer any admissible evidence to the 7 contrary. Plaintiff fails to demonstrate that defendants have a history of violating the 8 ADA, that they intended to violate the ADA here, or that they intend to violate the ADA in 9 the future. The lack of evidence on these points indicates that future violations are not 10 reasonably likely to occur. The defendants here, like those in Montes, have little 11 incentive to remove the accessibility information and every incentive to maintain the 12 accessibility disclosures to prevent further legal liability. For these reasons, the court 13 finds that defendants clearly show that the alleged wrongful behavior is not reasonably 14 likely to recur. The voluntary cessation exception to mootness is thus inapplicable to 15 plaintiff's first claim. Defendants’ changes to their website, improving accessibility 16 disclosures to comport with the Reservations Rule, effectively removes the alleged 17 barriers. Any injunctive relief pursued by plaintiff under the ADA is moot. 18 D. Supplemental Jurisdiction over Unruh Act Claim 19 Plaintiff’s Unruh Act claim remains live even after cure of the alleged barriers 20 “[b]ecause a claim for damages under the Unruh Act looks to past harm.” Arroyo v. 21 Aldabashi, No. 16-CV-06181-JCS, 2018 WL 4961637, at *5 (N.D. Cal. Oct. 15, 2018). As 22 a state law claim, though, it is only before this court pursuant to the court’s supplemental 23 jurisdiction. See 28 U.S.C. § 1367(a). Such jurisdiction is discretionary. Acri v. Varian 24 Assocs., Inc., 114 F.3d 999, 1001 (9th Cir. 1997), supplemented, 121 F.3d 714 (9th Cir. 25 1997). 26 2 Accepting plaintiff’s claims as true, defendants’ lack of candor in this respect is 27 troubling. Defendants’ representations, avoiding acknowledgement of any remediation of 1 “District courts ‘may’—and often do—‘decline to exercise supplemental jurisdiction’ 2 if, as here, they have ‘dismissed all claims over which it has original jurisdiction.’” 3 Johnson v. Montpelier One LLC, No. 19-CV-06214-EJD, 2020 WL 3504458, at *3 (N.D. 4 Cal. June 28, 2020) (citing 28 U.S.C § 1367(c)(3)). As the Supreme Court and the Ninth 5 Circuit have “often repeated,” “in the usual case in which all federal-law claims are 6 eliminated before trial, the balance of factors will point toward declining to exercise 7 jurisdiction over the remaining state-law claims.” Acri, 114 F.3d at 1001 (quoting 8 Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n.7 (1988) (alterations omitted)). 9 Defendant asks the court to decline to exercise jurisdiction over the Unruh Act 10 claim. Dkt. 14-1 at 20. As described above, the court does not have jurisdiction over the 11 ADA claim because it is now moot. Plaintiff has not shown that this is other than the 12 “usual case.” The court has not considered the merits of the Unruh Act claim, and there 13 is no interest in judicial economy in retaining the case. Plaintiff fails to articulate any 14 significant inconvenience that he would face in refiling in state court. The court therefore 15 declines to exercise supplemental jurisdiction over plaintiff’s Unruh Act claim. See 28 16 U.S.C. § 1367(c). 17 CONCLUSION 18 For the reasons set forth above, the court DISMISSES AS MOOT plaintiff’s ADA 19 claim and DISMISSES his state law claims without prejudice for refiling in state court. 20 IT IS SO ORDERED. 21 Dated: December 15, 2021 22 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 23 United States District Judge
25 26 27