D'Lil v. Best Western Encina ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HOLLYNN D’LIL, 
Plaintiff-Appellant,
v. No. 06-55516
BEST WESTERN ENCINA LODGE &  D.C. No.
CV-02-09506-DSF
SUITES; ENCINA-PEPPER TREE LTD.;
DAVID Z. WEBBER; JEANETTE OPINION
WEBBER; CECELIA E. VILLINES,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted
November 5, 2007—Pasadena, California
Filed August 12, 2008
Before: Betty B. Fletcher, Stephen Reinhardt, and
Pamela Ann Rymer, Circuit Judges.
Opinion by Judge Reinhardt;
Partial Concurrence and Partial Dissent by Judge Rymer
10353
10358 D’LIL v. BEST WESTERN
COUNSEL
Timothy S. Thimesch, Esq, Thimesch Law Offices, Walnut
Creek, California, for the plaintiff-appellant.
Jeffrey H. Baraban, Esq., Christopher S. Teske, Esq., James
S. Link, Esq. (argued), Baraban & Teske, Pasadena, Califor-
nia, for the defendants-appellees.
Martin H. Orlick, Esq., Jeffer, Mangels, Butler & Marmaro,
LLP, San Francisco, California, for the defendants-appellees.
OPINION
REINHARDT, Circuit Judge:
We consider whether Hollynn D’Lil has standing to seek
attorney’s fees in an action brought against the Best Western
Encina Lodge & Suites (“Best Western Encina”) under Title
III of the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12181 et seq., and California civil rights laws. We
conclude that she does.
I. Background
Hollynn D’Lil is a paraplegic who requires the use of a
wheelchair for mobility. On December 13, 2001, D’Lil trav-
eled from her home in Sacramento to Santa Barbara, Califor-
nia in order to conduct a property inspection for attorney
D’LIL v. BEST WESTERN 10359
Jason Singleton.1 Early that day, she called the Best Western
Encina to reserve a wheelchair accessible room for the night.
She was informed that the hotel had an available room that
lacked a roll-in shower, but was fully accessible in all other
respects. She reserved the room.
When D’Lil arrived at the hotel that evening, she encoun-
tered what she describes as “multiple and severe barriers to
disabled access.” Steep ramps, lack of handrails, and high
counters made it difficult for D’Lil to maneuver in the front
lobby and desk area. After D’Lil checked in and proceeded to
her room, she discovered that the area of the hotel containing
the designated disabled access rooms did not have any van
accessible parking spaces nearby. Once inside her room,
D’Lil found that many of the facilities, including the door
hardware, curtain and heating controls, and lamps were either
too high or too far from a clear path of travel for her to use.
The path to the bathroom was blocked by beds and furniture
and the bathroom itself lacked sufficient room to approach
and safely use the toilet, which was too low to the ground.
The grab bars on either side of the toilet were not properly
positioned nor were they of the correct length, resulting in
“bruises and strains to both [of D’Lil’s] arms and legs while
trying to use the facility.” The bathtub was similarly inacces-
sible.
On December 13, 2002, D’Lil filed suit against the Best
Western Encina seeking injunctive relief under Title III of the
ADA,2 injunctive relief and damages under California civil
1
D’Lil works as an “accessibility consultant,” contracting with private
attorneys and local governments to evaluate properties for barriers to dis-
abled access.
2
Title III of the ADA provides that “[n]o individual shall be discrimi-
nated against on the basis of disability in the full and equal enjoyment . . .
of any place of public accommodation.” 42 U.S.C. § 12182(a). “Discrimi-
nation” is defined as “a failure to remove . . . barriers . . . where such
removal is readily achievable” or, “where an entity can demonstrate that
10360 D’LIL v. BEST WESTERN
rights laws, as well as attorney’s fees, litigation expenses, and
costs. After three years of litigation, the parties entered into
a consent decree that settled all issues related to injunctive
relief and damages. The issue of attorney’s fees, litigation
expenses, and costs was reserved for future resolution.
D’Lil then filed a motion for attorney’s fees. In opposing
D’Lil’s motion, the defendants did not contest her standing to
sue.3 The district court nevertheless expressed “concern . . .
that the issue of standing was never resolved” and issued a
sua sponte order requiring the parties to address it. In
response to the district court’s order, both parties filed briefs
on standing and an evidentiary hearing was held, at which
D’Lil testified.4 The “only question” with which the district
court was concerned at the hearing was whether D’Lil had a
“legitimate intent to return” to the Best Western Encina at the
time that the complaint was filed. After hearing D’Lil’s testi-
the removal of a barrier . . . is not readily achievable, a failure to make
. . . accommodations available through alternative methods if such meth-
ods are readily achievable.” 42 U.S.C. § 12182(b)(2)(iv)-(v). Title III pro-
vides for injunctive relief as the exclusive remedy for private individuals
seeking to enforce the law. 42 U.S.C. § 12188(a)(2).
3
Although defendants did not raise the issue in opposing the motion for
attorney’s fees, they had previously challenged D’Lil’s standing in their
motions to dismiss and for partial summary judgment. Both challenges
were rejected.
4
D’Lil’s brief as well as her attorney’s communications with defense
counsel and the court prior to the evidentiary hearing reflect some confu-
sion as to the scope of the issues that were to be addressed at the hearing.
At an earlier stage of the litigation, D’Lil filed an unsuccessful motion in
limine to preclude discovery of her approximately sixty past ADA suits.
In his brief on standing, counsel renewed his objections to the inclusion
of evidence related to D’Lil’s prior litigation. Although a preliminary
hearing was scheduled for the purpose of clarifying the scope of the evi-
dentiary hearing, it was later cancelled. D’Lil argues that her due process
rights were violated when the district court cancelled the preliminary hear-
ing. Because we resolve this case on standing grounds, we do not reach
this argument.
D’LIL v. BEST WESTERN 10361
mony and receiving additional briefing from the parties, the
district court found that D’Lil failed to provide evidence of
her intent to return “as of December 2002.” The court also
expressed skepticism that D’Lil would be able to establish
standing even if she had provided such evidence, noting con-
cerns about the credibility of D’Lil’s professed desire to
return in light of her involvement in multiple prior ADA suits.
Accordingly, the district court concluded that D’Lil failed to
meet her burden of establishing Article III standing, and that
the court therefore lacked jurisdiction over her attorney’s fees
motion. D’Lil subsequently filed motions for a new trial and
to renew her pending motion for attorney’s fees. The district
court denied D’Lil’s motions and imposed sanctions. This
appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291.
Whether a party has standing to pursue its claim is a question
of law that we review de novo. See Skaff v. Meridien North
America Beverly Hills, LLC, 506 F.3d 832, 837 (9th Cir.
2007) (citing Hartman v. Summers, 120 F.3d 157, 159 (9th
Cir. 1997)). We review the district court’s findings of fact for
clear error, id., and afford “great deference to district court
findings relating to credibility[,]” United States v. Jordan, 291
F.3d 1091, 1100 (9th Cir. 2002).
II. Discussion
A.
[1] As an initial matter, we reject D’Lil’s argument that the
district court lacked the authority to raise the issue of standing
sua sponte. “[S]tanding is an essential and unchanging part of
the case-or-controversy requirement of Article III.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992). For that rea-
son, both the Supreme Court and this court have held that
whether or not the parties raise the issue, “ ‘[f]ederal courts
are required sua sponte to examine jurisdictional issues such
as standing.’ ” Bernhardt v. County of Los Angeles, 279 F.3d
10362 D’LIL v. BEST WESTERN
862, 868 (9th Cir. 2001) (internal citation omitted) (emphasis
added); see also United States v. Hays, 515 U.S. 737, 742
(1995). The district court thus “had both the power and the
duty to raise the adequacy of [D’Lil’s] standing sua sponte.”
Bernhardt, 279 F.3d at 868.
[2] D’Lil’s principal rejoinder is that the question of subject
matter jurisdiction was resolved by the parties in the consent
decree, and that the district court was therefore powerless to
reexamine the issue by challenging D’Lil’s standing after the
decree became final. This argument lacks merit for two rea-
sons. First, it proceeds from the faulty premise that the parties
stipulated to the existence of standing in the consent decree.
Although the consent decree contains a stipulation to the exis-
tence of federal question jurisdiction, the decree is silent on
the issue of standing. The parties neither stipulated to standing
nor to any facts that would support it.
[3] Second, even if the consent decree did contain such a
stipulation, it would be of no moment. As the Supreme Court
has explained, “[t]he question of standing is not subject to
waiver . . . .” Hays, 515 U.S. at 742; see also United States
v. Ceja-Prado, 333 F.3d 1046, 1049 (9th Cir. 2003). More-
over, whatever effect the parties’ agreement (and the court’s
acquiescence therein) may have had on the entry of the con-
sent decree, our precedent makes clear that the court remains
under a continuing obligation to examine its jurisdiction
where, as here, the parties consent to the settlement of a case
but leave for future resolution the matter of attorney’s fees.
See Smith v. Brady, 972 F.2d 1095, 1097 (9th Cir. 1992) (“[I]f
the district court lacked jurisdiction over the underlying suit,
‘it had no authority to award attorney’s fees.’ ”) (quoting
Latch v. United States, 842 F.2d 1031, 1033 (9th Cir. 1988)
(footnote omitted)). The district court was therefore required
to revisit any concerns it had related to standing in consider-
ing D’Lil’s motion for attorney’s fees. We cannot fault it for
doing so.
D’LIL v. BEST WESTERN 10363
Having concluded that the district court had the authority
to raise the issue sua sponte, we turn to the merits of its con-
clusion that D’Lil failed to meet her burden of establishing
standing.
B.
[4] A party invoking federal jurisdiction has the burden of
establishing that it has satisfied the “case-or-controversy”
requirement of Article III of the Constitution; standing is a
“core component” of that requirement. Lujan, 504 U.S. at
560. In order to meet its burden of establishing standing, a
party must show three things:
First, [it] must have suffered an injury in fact—an
invasion of a legally protected interest which is (a)
concrete and particularized, and (b) actual or immi-
nent, not conjectural or hypothetical. Second, there
must be a causal connection between the injury and
the conduct complained of . . . . Third, it must be
likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.
Lujan, 504 U.S. at 560-61 (citations and quotation marks
omitted). Each of these elements “must be supported in the
same way as any other matter on which the plaintiff bears the
burden of proof, i.e., with the manner and degree of evidence
required at the successive stages of the litigation.” Id. at 561.
The evidence relevant to the standing inquiry consists of “the
facts as they existed at the time the plaintiff filed the com-
plaint.” Skaff, 506 F.3d at 838 (citing Lujan, 504 U.S. at 569
n.4). In evaluating whether a civil rights litigant has satisfied
these requirements, “[t]he Supreme Court has instructed us to
take a broad view of constitutional standing . . . especially
where, as under the ADA, private enforcement suits ‘are the
primary method of obtaining compliance with the Act.’ ”
Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1039-40 (9th Cir.
10364 D’LIL v. BEST WESTERN
2008) (quoting Trafficante v. Metro. Life Ins. Co., 409 U.S.
205, 209 (1972)).
[5] In the present case, the only issue is whether D’Lil met
her burden with respect to the second prong of the “injury in
fact” requirement, specifically, whether she demonstrated that
her injury was “actual or imminent” at the time that she filed
her complaint. Lujan, 504 U.S. at 560. In the context of a suit
for injunctive relief, this requirement may only be satisfied
where a plaintiff demonstrates “ ‘a sufficient likelihood that
he will again be wronged in a similar way’ . . . . That is, he
must establish a ‘real and immediate threat of repeated inju-
ry.’ ” Fortuyne v. American Multi-Cinema, Inc., 364 F.3d
1075, 1081 (9th Cir. 2004) (quoting City of Los Angeles v.
Lyons, 461 U.S. 95, 111 (1983), and O’Shea v. Littleton, 414
U.S. 488, 496 (1974)). The district court concluded that D’Lil
did not satisfy this requirement because she failed to intro-
duce evidence of her intent to return to the Best Western
Encina at the time that she filed her complaint in December
2002.
[6] In recent years, we have clarified the scope of the “ac-
tual or imminent” injury requirement in the context of suits
for injunctive relief brought under Title III of the ADA. In
Pickern v. Holiday Quality Foods, Inc., we held that
a disabled individual who is currently deterred from
patronizing a public accommodation due to a defen-
dant’s failure to comply with the ADA has suffered
“actual injury.” Similarly, a plaintiff who is threat-
ened with harm in the future because of existing or
imminently threatened non-compliance with the
ADA suffers “imminent injury.”
293 F.3d 1133, 1138 (9th Cir. 2002). Applying this rule in
cases where, as here, the public accommodation being sued is
far from the plaintiff’s home, we have found actual or immi-
nent injury sufficient to establish standing where a plaintiff
D’LIL v. BEST WESTERN 10365
demonstrates an intent to return to the geographic area where
the accommodation is located and a desire to visit the accom-
modation if it were made accessible. See id. (holding that
plaintiff established an actual or imminent injury where he
encountered barriers at a Holiday Paradise grocery store 70
miles from his home and stated that “he prefers to shop at
Holiday markets and that he would [return to] shop at the Par-
adise market [near his grandmother’s home] if it were accessi-
ble”); Doran, 524 F.3d at 1037-38 (holding plaintiff
demonstrated actual or imminent injury where he established
intent to return to 7-Eleven store 550 miles from his home on
future trips, once the barriers to access were removed). We
have explicitly not required ADA plaintiffs to engage in the
“futile gesture” of visiting or returning to an inaccessible
place of public accommodation in order to satisfy the standing
requirement. See Pickern, 293 F.3d at 1135.
[7] In order to show the actual and imminent nature of her
injury, then, D’Lil must demonstrate her intent to return to the
Santa Barbara area and, upon her return, her desire to stay at
the Best Western Encina if it is made accessible. On this
record, there can be little doubt that she has done so. D’Lil’s
intent to return to the Santa Barbara area is evidenced by the
regularity with which she visited the city before, during, and
after her stay at the Best Western Encina. By her declaration,
and her testimony at the evidentiary hearing, D’Lil demon-
strated that she has been visiting the Santa Barbara area since
the early 1980s for both business and pleasure.5 From 1993 to
2000, she visited approximately 1-3 times per year in connec-
tion with her work for the state Department of Rehabilitation.
In 2001, the year that D’Lil stayed at the Best Western
5
In D’Lil’s declaration, she attributes her fondness for Santa Barbara to
“the region’s beauty, the weather; the history of the region; my friends
[the Marshes] who live there; my past frequent visits with my children,
which provides me with a sort of history and familiarity with its surround-
ings that make vacationing there enjoyable; the many major attractions
there, especially the Mission and the beach; the downtown shopping and
the local cuisine, which is unique and outstanding.”
10366 D’LIL v. BEST WESTERN
Encina, she took three trips to Santa Barbara to visit her
friends the Marshes, to vacation with her children, and to per-
form work for attorney Singleton. In the three years between
her visit to the Best Western Encina and the filing of her dec-
laration in the case, D’Lil returned to Santa Barbara four
times to conduct business inspections and to visit the
Marshes. At the evidentiary hearing, D’Lil testified to three
upcoming trips that she was planning to the Santa Barbara
area, including a vacation to visit the Marshes, an evidentiary
hearing for another trial, and a prospective work trip to Car-
pinteria.
[8] D’Lil’s desire to stay at the Best Western Encina on
future trips to Santa Barbara if it were made accessible is also
well supported by the evidence that she submitted at each suc-
cessive stage of the litigation. In her complaint, D’Lil stated
that she “would like to return and use the subject Best West-
ern Encina on a spontaneous, but full and equal basis” but that
she “is prevented from doing so by defendants’ failure and
refusal to provide disabled persons . . . with ‘full and equal
access’ [to its] facilities.” In opposing defendants’ motion for
summary judgment, D’Lil submitted a declaration again reit-
erating that she “definitely plan[s] on staying at the [Best
Western Encina] when it is made accessible.”6 In that declara-
tion, she explained that her preference for staying at the Best
Western Encina during future trips to Santa Barbara was
based on the hotel’s proximity to downtown, its accessibility
from the freeway, and its amenities, including lush gardening
and fresh country linen quilts. At the close of her declaration,
she summarized her preference for the Best Western Encina
as follows: “It is a nice facility and fits with my needs with
regards to taste, style, price and location . . . . If made accessi-
6
This statement, like several others in D’Lil’s declaration, was incorpo-
rated from a previous declaration in a related case that D’Lil filed against
the Ramada Limited after an unsuccessful attempt to find an accessible
room at that hotel during the same trip to Santa Barbara in December
2001. See D’Lil v. Ramada Limited, SACV 03-589-CJC (Shx).
D’LIL v. BEST WESTERN 10367
ble, I would definitely choose it again during my visits to
Santa Barbara.” At the evidentiary hearing, D’Lil, consistent
with her declaration, testified that she had a desire to stay at
the Best Western Encina because “it’s the kind of hotel that
I would like to stay at. It’s simple, and you park close to your
room, and it has a place to eat so I don’t have to get in the
car and drive somewhere else to go eat. . . . . It meets the con-
figuration of the kind of hotel I like to stay at. It’s also less
expensive than some of the other hotels.”7
[9] Despite D’Lil’s declaration and testimony detailing her
intent to return to Santa Barbara and her preference for the
Best Western Encina, the district court concluded that she
failed to “even address[ ] the relevant issue” because, in the
court’s view, D’Lil failed to provide any evidence of her
intent to return at the time the action was filed—December
13, 2002. See Skaff, 506 F.3d at 838; Lujan, 504 U.S. at 569
n.4. The district court’s conclusion is somewhat baffling in
light of the record in this case. Although D’Lil was never
explicitly asked whether she intended to return as of Decem-
ber 13, 2002, that she so intended is the obvious and most rea-
sonable inference to be drawn from her testimony.8 D’Lil’s
7
At the evidentiary hearing, D’Lil also explained why she preferred the
Best Western Encina to other accessible hotels in the area. One of the
accessible hotels requires her to travel with a companion; another is
expensive and is “very difficult to stay [at] because it’s so far to go for
everything”; a third she described as having “problems.” Moreover, D’Lil
testified that the small number of accessible rooms within each of these
hotels decreases the chances that she will be able to secure a reservation
on any given trip.
8
We note that although the district court faulted D’Lil’s counsel for fail-
ing to elicit explicit testimony about D’Lil’s intent to return at the time
that the complaint was filed, the court itself prompted D’Lil to testify as
to her present intentions. At the evidentiary hearing, the court told plain-
tiff’s counsel that it was “interested in why Ms. D’Lil goes to Santa Bar-
bara or would want to stay in Santa Barbara.” Evid. Hr’g Tr. at 59-60
(emphasis added). The court reiterated that “it’s relevant to know why she
goes to Santa Barbara, how often she goes to Santa Barbara, if at all” and
declared that so long as D’Lil “goes to Santa Barbara, then that’s all she
needs to establish.” Id. (emphasis added). Given this instruction, it is not
surprising that counsel elicited testimony about D’Lil’s present, rather
than past, intentions.
10368 D’LIL v. BEST WESTERN
testimony that she regularly visited Santa Barbara both before
and after she filed the complaint evidences that she was a fre-
quent traveler to Santa Barbara during the relevant time
period. See, e.g., Pickern, 293 F.3d at 1135 (finding standing
where plaintiff traveled to Paradise weekly to visit his grand-
mother); Doran, 524 F.3d at 1040 (finding standing where
plaintiff traveled to Anaheim “at least once a year on his
annual trips to Disneyland”).9
[10] D’Lil also gave detailed reasons as to why she would
prefer to stay at the Best Western Encina during her regular
visits to Santa Barbara if it were made accessible including
the hotel’s style, price, and location. Because D’Lil did not
return to the hotel after she filed suit, she did not have an
opportunity to develop new impressions of it. Nor is there any
indication in the record that anything happened between the
time that the complaint was filed and the evidentiary hearing
that would alter D’Lil’s opinion of the hotel or her desire to
stay there once it was renovated. Thus, D’Lil’s stated reasons
for preferring the Best Western Encina at the evidentiary
hearing were necessarily based on impressions of the hotel
that were formed, and that she held, at the time that she stayed
there and subsequently filed suit.
[11] In light of this testimony, we cannot agree with the
district court that D’Lil failed to provide evidence of her
9
A careful review of D’Lil’s testimony also shows that she had at least
one concrete plan to return to the Santa Barbara area at the time that she
filed suit. See Lujan, 504 U.S. at 564. D’Lil testified that during her
December 2001 trip to Santa Barbara, she “thought [she] would be doing
some more work in Solvang.” She thought it would be “great” to stay in
Santa Barbara during that trip because it is “well-positioned between
Solvang and Montecito, where [her] friend Hugh [Marsh] lives.” As a
result, she spent an afternoon in December 2001 looking for an accessible
hotel at which she might be able to stay during that trip. D’Lil did in fact
travel to Solvang for work in April 2003—just four months after the suit
was filed—and stayed in Santa Barbara at that time. D’Lil therefore knew
of a specific upcoming trip to the area, and had already begun to plan for
it, at the time that the complaint was filed.
D’LIL v. BEST WESTERN 10369
intent to return at the time that she filed suit. To the contrary,
her testimony plainly evidences such an intent. Accordingly,
we hold that D’Lil established that she suffered an “actual or
imminent” injury sufficient to confer standing.
C.
[12] The district court’s purported credibility ruling does
not disturb our conclusion that D’Lil sufficiently established
her standing to sue. This is so primarily because the district
court explicitly declined to decide the credibility issue, rely-
ing instead on the ground that D’Lil did not introduce evi-
dence of her intent to return in December 2002 to find that she
lacked standing: a ground that we reject supra. Nevertheless,
the district court expressed concerns about D’Lil’s credibility
throughout its opinion. To the extent that its concerns might
be viewed as an adverse credibility finding, we reject the legal
reasoning on which such finding is based and, therefore,
despite the deference we ordinarily owe its findings, reject its
ultimate determination.
[13] The district court’s concerns about D’Lil’s credibility
focused particularly on her past ADA litigation. In comment-
ing on D’Lil’s approximately sixty prior ADA suits, the court
wrote, “it appears Plaintiff declares that she intends to return
to nearly every place she sues (as indeed she must in order to
establish standing in federal court). While some of these alle-
gations may have initially been accepted in other cases with-
out question, even at the trial stage, as more suits are filed and
more — and contradictory — allegations are made, credibility
concerns increase.” Dist. Ct. Order at 17.
[14] The attempted use of past litigation to prevent a liti-
gant from pursuing a valid claim in federal court warrants our
most careful scrutiny. See, e.g., Outley v. City of New York,
837 F.2d 587, 592 (2d Cir. 1988). This is particularly true in
the ADA context where, as we recently explained, the law’s
provision for injunctive relief only “removes the incentive for
10370 D’LIL v. BEST WESTERN
most disabled persons who are injured by inaccessible places
of public accommodation to bring suit . . . . As a result, most
ADA suits are brought by a small number of private plaintiffs
who view themselves as champions of the disabled. . . . For
the ADA to yield its promise of equal access for the disabled,
it may indeed be necessary and desirable for committed indi-
viduals to bring serial litigation advancing the time when pub-
lic accommodations will be compliant with the ADA.” Molski
v. Evergreen Dynasty Corp., 500 F.3d 1047, 1062 (9th Cir.
2007) (citing Samuel R. Bagnestos, The Perversity of Limited
Civil Rights Remedies: The Case of “Abusive” ADA Litiga-
tion, 54 U.C.L.A. L. Rev. 1, 5 (2006)). Accordingly, we must
be particularly cautious about affirming credibility determina-
tions that rely on a plaintiff’s past ADA litigation.
[15] Here, the district court relied on D’Lil’s prior ADA
suits to question the sincerity of her intent to return to the Best
Western Encina. The court noted that D’Lil had not returned
to six hotels that she sued during a 2002 trip to Redding, Cali-
fornia and found it implausible that a plaintiff with approxi-
mately sixty prior ADA suits sincerely “intends to return to
nearly every place she sues.” The record contains no evidence
of whether those places had been made accessible, such that
D’Lil could have safely returned if she so wished. Moreover,
whether or not D’Lil visited the hotels in Redding says little
about her intent to visit the Best Western Encina, considering
that D’Lil identified specific reasons—including the presence
of the Marshes and expected future work in Solvang—for
returning to Santa Barbara. The district court’s speculation
about the plausibility of D’Lil’s intent to return to each place
of public accommodation that she sued is further undermined
by evidence of D’Lil’s extensive and frequent travel through-
out the state, buttressing her claim that she would again have
occasion to patronize the establishments she sued if they were
made accessible. Although we afford great deference to a dis-
trict court’s credibility assessments, on this record we cannot
agree that D’Lil’s past ADA litigation was properly used to
impugn her credibility. Accordingly, because the district court
D’LIL v. BEST WESTERN 10371
focused on D’Lil’s history of ADA litigation as a basis for
questioning the sincerity of her intent to return to the Best
Western Encina, we reject its purported adverse credibility
determination.
D.
[16] Finally, D’Lil requests that we reassign this case to a
different district judge on remand.10 “Remand to a different
trial judge is appropriate under a demonstration of personal
bias or in ‘unusual circumstances.’ ” Smith v. Mulvaney, 827
F.2d 558, 562 (9th Cir. 1987) (citations omitted). To deter-
mine whether “unusual circumstances” are present, we con-
sider:
(1) whether the original judge would reasonably be
expected upon remand to have substantial difficulty
in putting out of his or her mind previously-
expressed views or findings determined to be errone-
ous or based on evidence that must be rejected, (2)
whether reassignment is advisable to preserve the
appearance of justice, and (3) whether reassignment
would entail waste and duplication out of proportion
to any gain in preserving the appearance of fairness.
Bolt v. United States, 509 F.3d 1028, 1035 (9th Cir. 2007)
(citation omitted).
[17] Although the record reflects a sense of frustration on
the part of the district judge with D’Lil and her counsel, we
find no evidence of personal bias. See, e.g., Liteky v. United
States, 510 U.S. 540, 555 (1994) (“[J]udicial remarks during
the course of a trial that are critical or disapproving of, or
event hostile to, counsel, the parties, or their cases, ordinarily
10
Our authority to do so derives from 28 U.S.C. § 2106, which affords
appellate courts the power to “require such further proceedings to be had
as may be just under the circumstances.”
10372 D’LIL v. BEST WESTERN
do not support a bias or partiality challenge.”). Nor are any
“unusual circumstances” present that would counsel in favor
of reassignment. We have no reason to believe that the district
judge will not follow both the letter and spirit of this opinion.
We therefore decline D’Lil’s request.
III. Conclusion
For the reasons set forth above, we reverse the district
court’s dismissal of D’Lil’s motion for attorney’s fees for lack
of standing as well as its imposition of sanctions, and remand
for that court to consider the merits of the motion.
REVERSED and REMANDED.
RYMER, Circuit Judge, concurring in part and dissenting in
part:
I agree with Part II.A but not with Parts II.B and C of the
majority opinion. Consequently, I concur in Part II.A and dis-
sent as to Parts II.B and C.
Part II.B acknowledges (properly, in my view) the need for
an ADA plaintiff to show “a real and immediate threat of
repeated injury” for purposes of standing. Fortyune v. Ameri-
can Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004)
(quoting City of Los Angeles v. Lyons, 461 U.S. 95, 111
(1983)); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992). Then it declines (improperly, in my view) to accept
the district court’s finding that D’Lil failed to provide evi-
dence of her intent to return to the Best Western Encina as of
the time her complaint was filed. In this, as I see it, the analy-
sis is flawed.
First, it dismisses Lujan’s distinction between “ ‘some day’
intentions” and “concrete plans,” 504 U.S. at 564, by stating
D’LIL v. BEST WESTERN 10373
that ADA plaintiffs are “not required . . . to engage in the
‘futile gesture’ of actually returning to an inaccessible place
of public accommodation in order to satisfy the injury in fact
requirement.” Maj. Op. at 10365 (citing Pickern v. Holiday
Quality Foods, Inc., 293 F.3d 1133, 1135 (9th Cir. 2002)).
However, this conflates injury in fact with the additional
requirement for injunctive relief — actual or imminent injury
— which is met only if the plaintiff is likely to return such
that it can be said her injury is “certainly impending.” Lujan,
504 U.S. at 564 & n.2.
Second, instead of deferring to the district judge’s assess-
ment, the majority decides for itself what “the obvious and
most reasonable inference to be drawn from [D’Lil’s] testimo-
ny” is. Maj. Op. at 10367. That is not, however, our role when
reviewing a district court’s factual determinations after an evi-
dentiary hearing. See, e.g., Bouman v. Block, 940 F.2d 1211,
1222 (9th Cir. 1991) (noting that we apply the deferential
clearly erroneous standard to the district court’s finding about
the real reason a nonapplicant failed to apply for a position).
Further, the opinion supports its own “findings” by allega-
tions in the complaint and declarations in opposition to sum-
mary judgment, Maj. Op. at 10368, but these fall by the
wayside once an evidentiary hearing is held. The evidence at
that point is no longer viewed in the light most favorable to
D’Lil; rather, controverted facts “must be supported by the
evidence adduced” at the hearing. Lujan, 504 U.S. at 561.
Having heard testimony from D’Lil, the district court found
that D’Lil had adduced no evidence as to her intent to return
to Santa Barbara or to the Best Western (if accessible) as of
December 2002, when the action was brought.1 D’Lil v. Best
1
As the court explained:
It is obvious that Plaintiff could easily have testified to her inten-
tion — as of December 13, 2002 — to return to Santa Barbara,
her plans for returning to Santa Barbara, and her intention to stay
10374 D’LIL v. BEST WESTERN
Western Encina Lodge & Suites, 415 F. Supp. 2d 1048, 1054,
1055 (C.D. Cal. 2006). The record discloses no such evidence
which, as the district court noted, would have been but one
question away. No one disputes that the date of filing is the
critical time; the existence of federal jurisdiction depends on
the facts as they were when the action was commenced. See
Wilbur v. Locke, 423 F.3d 1101, 1107 (9th Cir. 2005).
Accordingly, I am not firmly convinced that the district court
got it wrong.
Even though the majority holds that the court did get it
wrong, Part II.C nevertheless discusses credibility. It recog-
nizes that the district court only expressed concerns about
credibility. Still, to the extent the court’s concerns might be
taken as an adverse credibility finding, the majority rejects the
“legal reasoning” on which any such finding is based. Maj.
Op. at 10369. Evidently this is because, in the majority’s
view, the district court “focused on D’Lil’s history of ADA
litigation as a basis for questioning the sincerity of her intent
to return to the Best Western Encina.” Id. at 10371. That is
not, however, what the district court did. Rather, the court rea-
at the Encina Lodge if it were made accessible. Her testimony,
if credited, and if factually sufficient to meet the Lujan require-
ments, were all that was necessary to meet her burden. Yet Plain-
tiff was asked no questions that would elicit such testimony.
Instead, Plaintiff was asked about her present intentions — in
other words, she was asked about her intentions approximately
two years and nine months after the relevant time frame. Even
then, Plaintiff said only that (1) she had “a case coming up for
Mr. Singleton,” (2) she had a trial in Santa Barbara (apparently
the suit she filed against Ramada), and (3) she had “been talking
about taking a vacation down to Santa Barbara.” Plaintiff later
testified that the case for Mr. Singleton was in Carpenteria, not
Santa Barbara, and that she has no other work in Santa Barbara.
Because questions relating back to 2002 were so obviously rele-
vant and could so easily have been addressed, the Court can only
assume the answers would not have established standing.
415 F. Supp. 2d at 1054-55 (internal citations to the record omitted).
D’LIL v. BEST WESTERN 10375
soned that statements D’Lil made in connection with other
lawsuits are relevant to credibility. 415 F. Supp. 2d at 1058
n.14. This is surely correct, for to the extent that D’Lil repre-
sented in prior lawsuits that she intended to return to the place
of accommodation at issue in those cases in the reasonably
near future, yet never has,2 the sincerity of a similar expres-
sion of intent in this law suit — to return to the Best Western
Encina in the reasonably near future — is called into question.
When, as here, standing turns on the likelihood of being
wronged again, see Fortyune, 364 F.3d at 1081, there is noth-
ing remarkable about measuring prior representations against
the reality that the plaintiff has not yet done what she said she
intended to do. Among other things, this may mean that she
has made so many commitments to return to so many places
of public accommodation in so many different locales that
returning to the place at issue in this case — the Best Western
Encina — is infeasible or, at least, implausible. In this way,
evidence of prior statements may have probative value by
shedding light on the present likelihood of repeated injury. If
a district court were to so find, after an evidentiary hearing,
I see no need for us to be “particularly cautious about affirm-
ing credibility determinations that rely on a plaintiff’s past
ADA litigation.” Maj. Op. at 10370.
In sum, I would affirm because D’Lil failed to show any
concrete plan or intent to return to the Best Western Encina
2
There was evidence to this effect with respect to at least six prior suits
arising out of a trip that D’Lil took to Redding. Although the record con-
tains no evidence of whether these places had been made accessible such
that D’Lil could have safely returned, Maj. Op. at 10370, the more rele-
vant point is that D’Lil never tried to find out. Likewise, the majority pos-
its that whether or not D’Lil revisited the hotels in Redding says little
about her intent to visit the Best Western Encina. Id. However true this
may be given differences between Redding and Santa Barbara, as well as
how far apart they are, the salient inference about the likelihood of her
returning to the Best Western Encina is that D’Lil said she would return
to the Redding hotels but has not yet done so.
10376 D’LIL v. BEST WESTERN
as of the time she filed her complaint. Accordingly, she falls
short of the standard for standing to seek injunctive relief. To
the extent questioned by the majority, I would not fault the
district court for credibility concerns based on prior represen-
tations of an intent to return to numerous places of public
accommodation coupled with the reality that those commit-
ments remain outstanding.