Whitaker v. KK LLC

• Court: District Court, N.D. California
• Decided: April 29, 2021
• Docket: 3:20-cv-06877
• Status: Unknown

Opinion

1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 BRIAN WHITAKER, Case No. 20-cv-06877-MMC

8 Plaintiff, ORDER GRANTING DEFENDANT'S 9 v. MOTION TO DISMISS; DISMISSING FIRST AMENDED COMPLAINT 10 KK LLC, WITHOUT LEAVE TO AMEND 11 Defendant.

12 13 Before the Court is defendant KK LLC’s (“KK LLC”) Motion, filed April 16, 2021, “to 14 Dismiss Plaintiff’s First Amended Complaint.” Plaintiff Brian Whitaker (“Whitaker”) has 15 filed opposition, to which KK LLC has replied. Having considered the papers submitted in 16 support of and in opposition to the motion, the Court rules as follows.1 17 BACKGROUND 18 Whitaker, a quadriplegic who uses a wheelchair for mobility, alleges he “planned 19 on making a trip in September of 2020 to the San Francisco area” (see First Am. Compl. 20 (“FAC”) ¶¶ 1, 14), and, in “seeking to book an accessible room,” visited the “website 21 reservation site” (“Website”) for the Ramada Limited Hotel (“Hotel”), located at 721 22 Airport Blvd., South San Francisco, California (see id. ¶¶ 2, 15-16). Whitaker alleges the 23 Website “is either maintained and operated by . . . defendant or is run by a third party on 24 . . . defendant’s behalf.” (See id. ¶ 17.) 25 According to Whitaker, he “would like to patronize [the Hotel] but is deterred from 26 doing so because of the lack of detailed information through the hotel’s reservation 27 1 system.” (See FAC ¶ 39.) In particular, Whitaker alleges, the Hotel, on its Website, “has 2 done nothing more than slap the word ‘accessible’ on all the public areas of the hotel” 3 (see id. ¶ 19) and, while the Website “provided some actual details” about the specific 4 room he thought “looked promising,” specifically, the “1 King Bed, Mobility Accessible 5 Room, Non-Smoking,” the Website “d[id] not provide description or details” concerning 6 the bed, toilet, and sink “that would permit [him]—or any wheelchair user—to make an 7 independent assessment about whether it works for them” (see id. ¶¶ 22-23, 28). 8 Based on the above allegations, Whitaker asserts two Causes of Action, titled, 9 respectively, “Violation of the Americans with Disabilities Act of 1990” and “Violation of 10 the Unruh Civil Rights Act.” 11 LEGAL STANDARD 12 Dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure can be 13 based on the lack of a cognizable legal theory or the absence of sufficient facts alleged 14 under a cognizable legal theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 15 699 (9th Cir. 1990). Rule 8(a)(2), however, “requires only ‘a short and plain statement of 16 the claim showing that the pleader is entitled to relief.’” See Bell Atlantic Corp. v. 17 Twombly, 550 U.S. 544, 555 (2007) (quoting Fed. R. Civ. P. 8(a)(2)). Consequently, “a 18 complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual 19 allegations.” See id. Nonetheless, “a plaintiff's obligation to provide the grounds of his 20 entitlement to relief requires more than labels and conclusions, and a formulaic recitation 21 of the elements of a cause of action will not do.” See id. (internal quotation, citation, and 22 alteration omitted). 23 In analyzing a motion to dismiss, a district court must accept as true all material 24 allegations in the complaint and construe them in the light most favorable to the 25 nonmoving party. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986). “To 26 survive a motion to dismiss, a complaint must contain sufficient factual material, accepted 27 as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 1 enough to raise a right to relief above the speculative level[.]” Twombly, 550 U.S. at 555. 2 Courts “are not bound to accept as true a legal conclusion couched as a factual 3 allegation.” See Iqbal, 556 U.S. at 678 (internal quotation and citation omitted). 4 DISCUSSION 5 By the instant motion, KK LLC seeks dismissal of the FAC in its entirety, pursuant 6 to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Court addresses each 7 Cause of Action, in turn. 8 A. First Cause of Action 9 In the First Cause of Action, Whitaker alleges KK LLC violated the Americans with 10 Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 1201, et seq., specifically, 28 C.F.R. 11 § 36.302(e)(1) (“the Reservations Rule”), a regulation promulgated thereunder. In 12 particular, Whitaker argues, KK LLC, in violation of the Reservations Rule, failed to 13 provide the following accessibility information on its Website: (1) whether “the accessible 14 guestrooms provide at least 30 inches of maneuvering clearance on the sides of the 15 beds” (see Opp. at 16:17-19; see also FAC ¶ 29); (2) whether the “seat height” of toilets 16 in the accessible guestrooms “is between 17-19 inches” (see Opp. at 17:1-3; see also 17 FAC ¶ 31); (3) whether “[t]he sink provides knee clearance of at least 27 inches high for 18 at least 8 inches in depth, the plumbing is wrapped, and the mirror’s lowest reflective 19 edge is no more than 40 inches in height” (see Opp. at 17:21-24; see also FAC ¶ 30).2 3 20 In response, KK LLC contends the Website (see FAC ¶ 19; Defs.’ Req. for Judicial 21

22 2 Whitaker asserts reservation websites must provide additional accessibility information concerning doorways, toilets, and baths/showers (see Opp. at 18:6-14; see 23 also FAC ¶ 24), but acknowledges the Website provides such information (see, e.g., FAC ¶ 25 (alleging Website “stated that the guest room doorways were 32 inches of clear 24 width”)). 25 3 Although Whitaker also alleges KK LLC “failed to ensure that individuals with disabilities can make reservations for accessible guest rooms during the same hours and 26 in the same manner as individuals who do not need accessible rooms” (FAC ¶ 45), he fails to plead any facts in support of that conclusory allegation. See Iqbal, 556 U.S. at 27 678 (holding “[t]hreadbare recitals of the elements of a cause of action, supported by 1 Notice (“RJN”) Ex. 4) provides “more information about the Hotel’s accessibility than the 2 Reservations Rule, as construed by the 2010 Guidance, requires” (see Mot. at 8:12-13).4 3 As set forth below, the Court agrees. 4 The Reservations Rule provides, in relevant part:

5 A public accommodation that owns, leases (or leases to), or operates a place of lodging shall, with respect to reservations made by any means, 6 including by telephone, in-person, or through a third party[,] . . . [i]dentify and describe accessible features in the hotels and guest rooms offered 7 through its reservations service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or 8 guest room meets his or her accessibility needs. 9 See 28 C.F.R. § 36.302(e)(1). 10 On September 15, 2010, the Department of Justice (“DOJ”) published a Guidance 11 regarding the Reservations Rule (“2010 Guidance”), which Guidance states, “a 12 reservations system is not intended to be an accessibility survey.” See 28 C.F.R. Pt. 36, 13 App. A, “Guidance on Revisions to ADA Regulation on Nondiscrimination on the Basis of 14 Disability by Public Accommodations and Commercial Facilities” [hereinafter “28 C.F.R. 15 Pt. 36, App. A”]. The 2010 Guidance also states:

16 For hotels that were built in compliance with the 1991 Standards, it may be sufficient to specify that the hotel is accessible and, for each accessible 17 room, to 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 18 bathing facility (e.g., roll-in shower), and communications features available in the room (e.g., alarms and visual notification devices). Based on that 19 information, many individuals with disabilities will be comfortable making reservations. 20 . . .

21 [O]nce reservations are made, some hotels may wish to contact the guest to offer additional information and services. Or, many individuals with 22 disabilities may wish to contact the hotel or reservations service for more 23 4 The Court GRANTS KK LLC’s Request for Judicial Notice of the following two 24 documents: (1) the Consent Decree entered in United States v. Hilton Worldwide Inc., No. 10-1924, Doc No. 5 (D.D.C. Nov. 29, 2010) (see RJN Ex. 1) and (2) the “accessible 25 guestroom description” provided on the Website (see RJN at 2:6-9; RJN Ex. 4). See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (holding 26 courts “may take judicial notice of court filings and other matters of public record”); United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (holding courts “may consider . . . 27 documents incorporated by reference in the complaint . . . without converting [a] motion detailed information. At that point, trained staff (including staff located on- 1 site at the hotel and staff located off-site at a reservations center) should be available to provide additional information such as the specific layout of the 2 room and bathroom, shower design, grab-bar locations, and other amenities available (e.g., bathtub bench). 3 4 See id.5 5 As KK LLC points out, “[t]he DOJ’s interpretation of its ADA implementing 6 regulations is entitled to controlling weight unless it is plainly erroneous or inconsistent 7 with the regulation,” see Fortyune v. City of Lomita, 766 F.3d 1098, 1104 (9th Cir. 2014) 8 (internal quotation and citation omitted), and Whitaker does not contend, nor is there 9 anything else to suggest, the 2010 Guidance is either plainly erroneous or inconsistent 10 with the Reservations Rule. Further, even assuming, as Whitaker contends, the 2010 11 Guidance should not be afforded deference unless the Reservations Rule “is uncertain or 12 ambiguous” (see Opp. at 22:15-18), Whitaker himself has characterized the task of 13 interpreting the Reservations Rule as an “issue of first impression before this Court” and 14 purports to have “taken a stab at a fair construction of the statute” (see id. at 1:9-12; 14:7- 15 9). In any event, irrespective of any such arguable concession of ambiguity, and 16 “[l]ooking solely at the language of the regulation,” which requires hotels to describe their 17 accessible features in “enough detail” to “reasonably permit” individuals with disabilities to 18 assess whether a given hotel meets their accessibility needs, “it is far from clear what 19 constitutes ‘enough’ detail or when an individual's demand for more information is 20 ‘reasonable.’” See Love v. Wildcats Owner LLC, No. 20-CV-08913-DMR, 2021 WL 21 1253739, at *4 n.1 (N.D. Cal. Apr. 5, 2021) (internal citation omitted) (holding “the 22 Reservations Rule on its own is ambiguous and the DOJ's interpretation of the regulation 23 is entitled to deference”). 24 Consequently, the Court finds, contrary to Whitaker’s argument, “the [2010] 25

26 5 Although the 2010 Guidance also identifies the accessibility information “older hotels with limited accessibility features” should provide on their reservation websites, 27 see 28 C.F.R. Pt. 36, App. A, there is no dispute that the hotel here at issue is not an 1 Guidance is entitled to substantial deference.” See Arroyo v. AJU Hotel Silicon Valley 2 LLC, No. 20-cv-08218-JSW, Doc. No. 24, at 4:9-12 (N.D. Cal. Mar. 16, 2021) (citing 3 Kohler v. Presidio Int’l, Inc., 782 F.3d 1064, 1069 (9th Cir. 2015)). 4 Nor is the Court persuaded by Whitaker’s argument that the information identified 5 in the 2010 Guidance, i.e., “the general type of room (e.g., deluxe executive suite), the 6 size and number of beds (e.g., two queen beds), the type of accessible bathing facility 7 (e.g., roll-in shower), and communications features available in the room (e.g., alarms 8 and visual notification devices),” see 28 C.F.R. Pt. 36, App. A, is, in this instance, 9 insufficient. In particular, although, as Whitaker points out, the 2010 Guidance states the 10 information identified therein “may be sufficient” and that the DOJ “cannot specify what 11 information must be included in every instance,” see id., the 2010 Guidance “makes clear 12 that details about a hotel’s accessible features . . . can be provided once reservations are 13 made,” and, indeed, expressly states “a reservations system is not intended to be an 14 accessibility survey,” all of which “provides . . . support that websites need not include all 15 potentially relevant accessibility information,” see Love v. Marriott Hotel Servs., Inc., No. 16 20-CV-07137-TSH, 2021 WL 810252, at *7-8 (N.D. Cal. Mar. 3, 2021) (internal quotation 17 and citation omitted) (finding defendant’s reservation website, which “provide[d] the 18 information contemplated by the 2010 Guidance,” complied with Reservations Rule; 19 noting, “if a website was required to have all relevant information, individuals would not 20 need to call the hotel to get further information” (internal quotation and citation omitted)). 21 Moreover, shortly after the Reservations Rule was enacted, the DOJ, in an ADA 22 enforcement action, took a position consistent with the foregoing analysis. Specifically, 23 on November 29, 2010, the DOJ and Hilton Worldwide Inc. (“Hilton”) entered into a 24 consent decree (“HWI Consent Decree”), whereby Hilton was required, on its reservation 25 websites, to provide “the same guestroom accessibility information enumerated in [the] 26 2010 Guidance.” See Marriot Hotel Servs., 2021 WL 810252, at *7-8 (finding “the [HWI] 27 Consent Decree tracks the requirements of the Reservations Rule,” thereby providing 1 information required to comply with the Reservations Rule”; rejecting plaintiff’s argument 2 that “the Consent Decree never mentions the relevant regulation, never cites or uses the 3 regulatory language, and was a settlement agreement reached . . . almost half a year 4 before the regulation . . . bec[ame] effective and enforceable”); see also RJN Ex. 1 5 ¶ 25(a). Since that time, more than ten years have elapsed, and, during that rather 6 extensive period of time, the DOJ has given no indication that providing additional 7 information is necessary. 8 The Court next turns to the question of whether the Website here at issue provides 9 sufficient accessibility information under the Reservations Rule as interpreted by the 10 2010 Guidance. In that regard, the Website lists “ACCESSIBLE AMENITIES” for “1 11 KING BED, MOBILITY ACCESSIBLE ROOM, NON-SMOKING” as follows: (1) 12 “Adjustable Height Hand-Held Shower Wand,” (2) “Bathtub Grab Bars,” (3) “Bedroom is 13 Wheelchair Accessible,” and (4) “Raised Toilet Seat with Grab Bars” (see RJN Ex. 4), 14 and, on a separate webpage, lists fourteen additional “Accessible Amenities,” including 15 “Accessible Business Center,” “Accessible Front Desk,” “Accessible Guest Room 16 Doorways with 32” Clear Width,” “Staff Trained in Service to Guests with Disabilities,” 17 “TTY Devices for Guest Use,” and “TVs with Closed Captioning” (see FAC ¶ 19). 18 As KK LLC points out, the Website provides more accessibility information of 19 potential concern to Whitaker than the information identified in the 2010 Guidance, and a 20 number of district courts in this Circuit have granted motions to dismiss where the claims 21 were brought by plaintiffs who, like Whitaker, have limited mobility, and the websites at 22 issue therein provided less information regarding limited-mobility accessibility than that 23 provided here. See, e.g., Love v. W by W Almaden Expy I, LLC, No. 20-cv-07807-SVK, 24 Doc. No. 24 at 6:3-13 (N.D. Cal. Apr. 9, 2021); Garcia v. E.L. Heritage Inn of 25 Sacramento, LLC, No. 2:20-cv-02191-JAM-AC, 2021 WL 1253346, at *1 (E.D. Cal. Apr. 26 5, 2021). Further, although, as Whitaker points out, the Hotel describes various features 27 using only the term “accessible,” he fails to cite any authority holding such description is, 1 have held to the contrary. See, e.g., Garcia v. Gateway Hotel L.P., No. CV 20-10752 PA 2 (GJSx), 2021 WL 936176, at *4 (C.D. Cal. Feb. 25, 2021) (collecting cases) (rejecting 3 plaintiff’s argument that “claiming something is ‘accessible’ is a conclusion or opinion”; 4 finding “[d]efendant’s use of the term ‘accessible’ is not merely conclusory, it means that 5 the features in the hotel defined by [d]efendant as ‘accessible’ comply with the [ADA 6 Accessibility Guidelines]”). 7 The Court thus finds the Website provides sufficient accessibility information under 8 the Reservations Rule. 9 Accordingly, the First Cause of Action is subject to dismissal, and, given the above 10 findings, any amendment would be futile; consequently, such dismissal will be without 11 leave to amend. See Gadda v. State Bar of Cal., 511 F.3d 933, 939 (9th Cir. 2007) 12 (holding dismissal without leave to amend is proper where amendment would be futile); 13 see also, e.g., Gateway Hotel L.P., 2021 WL 936176, at *5 (dismissing operative 14 complaint without leave to amend; finding defendant’s reservation website complied with 15 ADA and, “[t]hus, . . . any future amendment would be futile”). 16 B. Second Cause of Action 17 In the Second Cause of Action, Whitaker asserts KK LLC violated the Unruh Civil 18 Rights Act, Cal. Civ. Code §§ 51-53, “by . . . failing to comply with the ADA with respect 19 to its reservation policies and practices.” (See FAC ¶ 48.) Whitaker’s Second Cause of 20 Action is predicated on the First Cause of Action and, as discussed above, the First 21 Cause of Action is subject to dismissal. 22 Accordingly, the Second Cause of Action is subject to dismissal, see Whitaker v. 23 Body, Art & Soul Tattoos L.A., LLC, 840 F. App’x 959, 961 n.2 (9th Cir. 2021) (holding, 24 “[b]ecause [plaintiff] did not adequately allege a violation of the ADA, he necessarily has 25 not adequately alleged a violation of the Unruh Civil Rights Act”), and, as with the First 26 Cause of Action, such dismissal will be without leave to amend. 27 // 1 CONCLUSION 2 For the reasons stated above, the Motion to Dismiss is hereby GRANTED, and the 3 || instant action is hereby DISMISSED. 4 IT IS SO ORDERED. 5 6 || Dated: April 29, 2021 . MAXINE M. CHESNEY 7 Unitéd States District Judge 8 9 10 11 12

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