Whitaker v. Montes

• Court: District Court, N.D. California
• Decided: May 7, 2021
• Docket: 3:21-cv-00679
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BRIAN WHITAKER, Case No. 21-cv-00679-EMC

8 Plaintiff, ORDER GRANTING DEFENDANTS’ 9 v. MOTION TO DISMISS WITH LEAVE TO AMEND 10 JOSE A MONTES, et al., Docket No. 8 11 Defendants.

12 13 14 Plaintiff Brian Whitaker has sued Villa Montes Hotel, L.P. (the “Hotel”) and its owners for 15 violations of the federal Americans with Disabilities Act (“ADA”) and the California Unruh Civil 16 Rights Act. As in other cases that have been filed by Mr. Whitaker or another individual 17 represented by the same counsel, the main issue is whether Defendants have violated an ADA 18 regulation, 28 C.F.R. § 36.302(e)(1)(ii) which provides in relevant part as follows:

19 A public accommodation that owns, leases (or leases to), or operates a place of lodging shall, with respect to reservations made by any 20 means, including by telephone, in-person, or through a third party –

21 . . . .

22 (ii) [i]dentify and describe accessible features in the hotels and guest rooms offered through its reservations service in 23 enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or 24 guest room meets his or her accessibility needs. 25 28 C.F.R. § 36.302(e)(1)(ii). 26 Currently pending before the Court is Defendants’ motion to dismiss. Having considered 27 the parties’ briefs and accompanying submissions, as well as the oral argument of counsel, and for 1 GRANTS the motion to dismiss but with leave to amend. 2 As an initial matter, the Court does not take judicial notice of the website information 3 submitted by Mr. Whitaker – information which he argues represents the state of the website when 4 he visited it in January 2021.1 First, that website information comes from a URL that does not 5 match the URL provided in the complaint. Second, the URL does not take a person to the website 6 information provided by Mr. Whitaker but rather to the website information provided by 7 Defendants in their own request for judicial notice. 8 In contrast to the above, the Court does take judicial notice of the website information 9 submitted by Defendants. That website information comes from a URL that matches the URL 10 provided in the complaint. Furthermore, there is no dispute by Mr. Whitaker that the website 11 information matches what can currently be found on Defendants’ website. 12 The website information submitted by Defendants contains a significant amount of 13 accessibility information – it is comparable to, if not more than, that provided by other hotels 14 where courts (including this Court) have held, at the 12(b)(6) phase, in favor of the defendant. 15 See, e.g., Love v. Ashford San Francisco II LP, No. C-20-8458 EMC (N.D. Cal.) (Docket No. 24) 16 (order granting defendant’s motion to dismiss). Accordingly, for reasons similar to those 17 articulated in Love, the Court grants Defendants’ motion to dismiss. Although Mr. Whitaker has 18 cited one case in support of his position, Garcia v. Patel & Joshi Hosp. Corp., No. EDCV 20-2666 19 JGB (PVCx), 2021 U.S. Dist. LEXIS 67028 (C.D. Cal. Mar. 19, 2021), that case is distinguishable 20 as the website at issue provided more limited information. 21 The Court, however, shall give Mr. Whitaker leave to amend. Mr. Whitaker has asserted 22 that, several weeks before he filed the complaint, he or someone on his behalf visited the website 23 for the Hotel and saw the website information contained in his request for judicial notice. 24 According to Mr. Whitaker, at some point thereafter, Defendants changed their website to include 25

26 1 No foundation for such is laid for the exhibit. Assuming that a foundation were laid, that would demonstrate why judicial notice would not be proper. See Fed. R. Evid. 201(b) (providing that a 27 “court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is 1 more information on accessibility. If Mr. Whitaker can plead (and ultimately prove) such in good 2 faith, then he may have a viable claim, whether under federal and/or state law. Although 3 Defendants have argued that there could be no federal claim because the ADA only allows for 4 injunctive relief, and the website currently complies with the ADA and its regulations, the Court 5 does not prejudge any argument of mootness other than to note it will have to assess the likelihood 6 of Defendants returning to a noncompliant website should a mootness issue arise. 7 Mr. Whitaker has until June 7, 2021, to file an amended complaint. 8 This order disposes of Docket No. 8. 9 10 IT IS SO ORDERED. 11 12 Dated: May 7, 2021 13 14 ______________________________________ EDWARD M. CHEN 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27