Gastelum v. Pinnacle Hotel Circle LP ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 FERNANDO GASTELUM, Case No.: 21-CV-1458 JLS (DEB) 12 Plaintiff, ORDER (1) GRANTING IN PART 13 v. AND DENYING IN PART DEFENDANT’S REQUEST FOR 14 PINNACLE HOTEL CIRCLE LP, dba JUDICIAL NOTICE; AND Comfort Inn and Suites San Diego Zoo 15 (2) DENYING DEFENDANT’S SeaWorld Area, MOTION TO DISMISS 16 Defendant. 17 (ECF Nos. 15 & 15-2) 18 19 20 Presently before the Court are Defendant Pinnacle Hotel Circle LP’s Motion to 21 Dismiss for Lack of Standing (“Mot.,” ECF No. 15) and Request for Judicial Notice 22 (“RJN,” ECF No. 15-2). Plaintiff Fernando Gastelum filed an Opposition to the Motion 23 (“Opp’n,” ECF No. 16), and Defendant filed a Reply in support of the Motion (“Reply,” 24 ECF No. 17). The Court took the matter under submission without oral argument pursuant 25 to Civil Local Rule 7.1(d)(1). See ECF No. 17. Having carefully reviewed Plaintiff’s First 26 Amended Complaint (“FAC,” ECF No. 14), the Parties’ arguments, and the law, the Court 27 GRANTS IN PART and DENIES IN PART Defendant’s Request for Judicial Notice and 28 DENIES the Motion. 1 BACKGROUND 2 Plaintiff, a resident of Casa Grande, Arizona, has been using a wheelchair for 3 mobility since 2015. FAC. ¶¶ 1, 12. When locations are not designed for the use of a 4 wheelchair, Plaintiff must use his prosthetic leg to move short distances. Id. ¶ 4. Plaintiff, 5 however, prefers to use a wheelchair, as the prosthetic leg is painful and uncomfortable, 6 according to Plaintiff. Id. 7 Defendant owns and operates a hotel located at 2485 Hotel Circle Place, San Diego, 8 California 92108 (the “Hotel”). Id. ¶ 6. Plaintiff claims he visited the Hotel on July 2, 9 2021, with the intention of lodging there. Id. ¶ 29. On the date of his visit, Plaintiff 10 allegedly discovered the Hotel was not compliant with the Americans with Disabilities 11 Act’s (“ADA”) regulations concerning wheelchair accessibility. Id. ¶ 34. Specifically, 12 Plaintiff states the Hotel’s access aisle slope is too steep and does not connect to an 13 accessible route, and a curb ramp is located on the accessible parking access aisle. Id. 14 ¶ 34(a)–(c). Plaintiff requests an injunction requiring Defendant to comply with state and 15 federal law regarding wheelchair access and “[d]amages under California law for $4,000 16 per violation.” Id. at 10–11.1 17 Plaintiff filed the Complaint on August 17, 2021. See generally ECF No. 1. The 18 Court dismissed the initial Complaint without prejudice for lack of standing. ECF No. 13. 19 Plaintiff then filed the FAC on June 1, 2022. See generally FAC. The FAC asserts 20 violations of the ADA, the California Unruh Civil Rights Act (the “Unruh Act”), and the 21 California Disabled Persons Act (the “DPA”). See id. at 7–10. On June 23, 2022, 22 Defendant filed the instant Motion, arguing that Plaintiff lacks standing and has failed to 23 state a claim under the ADA or the Unruh Act. See generally Mot. 24 / / / 25 / / / 26 27 28 1 Throughout this Order, the Court’s pincites refer to the blue page numbers stamped in the upper righthand 1 REQUEST FOR JUDICIAL NOTICE 2 As a general rule, a district court cannot rely on evidence outside the pleadings in 3 ruling on a Rule 12(b)(6) motion without converting the motion into a Rule 56 motion for 4 summary judgment. See United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003) (citing 5 Fed. R. Civ. P. 12(b); Parrino v. FHP, Inc., 146 F.3d 699, 706 n.4 (9th Cir. 1998)). “A 6 court may, however, consider certain materials—documents attached to the complaint, 7 documents incorporated by reference in the complaint, or matters of judicial notice— 8 without converting the motion to dismiss into a motion for summary judgment.” Id. at 908 9 (citing Van Buskirk v. CNN, 284 F.3d 977, 980 (9th Cir. 2002); Barron v. Reich, 13 F.3d 10 1370, 1377 (9th Cir. 1994); 2 James Wm. Moore et al., Moore’s Federal Practice § 12.34[2] 11 (3d ed. 1999)). Federal Rule of Evidence 201(b) provides that “[t]he court may judicially 12 notice a fact that is not subject to reasonable dispute because it: (1) is generally known 13 within the trial court’s territorial jurisdiction; or (2) can be accurately and readily 14 determined from sources whose accuracy cannot reasonably be questioned.” 15 In support of its Motion to Dismiss, Defendant requests that the Court take judicial 16 notice of the following exhibits: (1) a spreadsheet downloaded from the federal 17 judiciary’s Public Access to Court Electronic Records (“PACER”) system showing 18 Plaintiff’s cases filed in the federal district courts in California through the present; (2) the 19 Second Amended Complaint in Gastelum v. KPK Hospitality, Case No. 21-1510 JGB 20 (Kkx) (C.D. Cal. May 16, 2011); (3) a search on TripAdvisor.com for San Diego hotels in 21 the “budget” class that Plaintiff claims to prefer; (4) a page from Google Maps showing 22 the numerous hotels that are either as close to SeaWorld and the “Pacific Coast” as 23 Defendant’s Hotel or closer; (5) Gastelum’s In Forma Pauperis Application filed in 24 Gastelum v. Hees II, Case 3:21-cv-01337-JLS-RBB (S.D. Cal. Jul. 27, 2021); and (6) 25 complaints filed by Plaintiff against hotels in Bakersfield, Gilroy, and San Diego arising 26 from his visit to California between June 29 and July 4, 2021. See generally RJN. 27 / / / 28 / / / 1 “[U]nder Fed R. Evid. 201, a court may take judicial notice of ‘matters of public 2 record.’” Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). PACER is a 3 “court-generated database that provides public access to court electronic records.” Moore 4 v. Saniefar, No. 114CV01067DADSKO, 2016 WL 2764768, at *2 n.2 (E.D. Cal. May 12, 5 2016). Thus, PACER’s accuracy cannot reasonably be questioned, and judicial notice may 6 be taken of “court records available to the public through the PACER system via the 7 internet.” Delano Farms Co. v. Cal. Table Grape, 546 F. Supp. 2d 859, 927 n.5 (E.D. Cal. 8 2008). Accordingly, the Court may take judicial notice of Exhibit (1), as the information 9 was generated by PACER. See, e.g., Delano Farms Co., 546 F.Supp.2d at 927 n.5; Reyn’s 10 Pasta Bella, LLC v. Visa USA Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (taking judicial , 11 notice of filings from other federal court proceedings as matters of public record). 12 As to the Second Amended Complaint in Gastelum v. KPK Hospitality, Gastelum’s 13 In Forma Pauperis Application filed in Gastelum v. Hees II, and the complaints filed by 14 Plaintiff against hotels in Bakersfield, Gilroy, and San Diego, these exhibits are all court 15 filings and thus matters of public records. See Lee, 250 F.3d at 689. Therefore, the Court 16 finds that taking judicial notice of Exhibits (2), (5), and (6) is appropriate. However, the 17 Court notes the limited scope of the judicial notice doctrine in this regard; specifically, the 18 Court takes notice of the existence and content of these public records, but not the truth of 19 the facts recited therein. See Coal. for a Sustainable Delta v. F.E.M.A., 711 F. Supp. 2d 20 1152, 1172 n.6 (E.D. Cal. 2010) (citations omitted). 21 Courts have taken judicial notice of a geographic location or distance measurement 22 as compiled by Google or a similar website. See, e.g., Pahls v. Thomas, 718 F.3d 1210, 23 1216 n.1 (10th Cir. 2013) (taking judicial notice of a map provided by Google Maps); 24 Citizens for Peace in Space v. City of Colorado Springs, 477 F.3d 1212, 1218 n.2 (10th 25 Cir. 2007) (taking judicial notice of distance calculation which relied on information 26 provided by Google Maps); Access 4 All, Inc. v. Boardwalk Regency Corp., No. Civ. A. 27 08–3817 RMB, 2010 WL 4860565, at *6 n.13 (D.N.J. Nov. 23, 2010) (taking judicial 28 notice of information obtained from Google Maps); see also Tesoro Ref. & Mktg. Co. v. 1 City of Long Beach, 334 F. Supp. 3d 1031, 1042 (C.D. Cal. 2017) (“Courts may judicially 2 notice locations using maps and satellite images.”) (citations omitted). Exhibit (4) is a 3 printout directly from Google Maps. Accordingly, the Court takes judicial notice of 4 Exhibit (4). 5 As to Exhibit (3), a search on TripAdvisor.com for San Diego hotels in the “budget” 6 class that Plaintiff claims to prefer, the Court declines to take judicial notice of 7 TripAdvisor’s website because it may have looked different when Plaintiff was searching 8 for lodging options. See e.g., Putt v. TripAdvisor Inc., No. CV 20-3836, 2021 WL 242470 9 at *7 (E.D. Pa. Jan. 25, 2021). Moreover, such information is not generally known in this 10 Court’s jurisdiction, and the information’s source is not beyond question. Fed. R. Evid. 11 201(b); see, e.g., Tijerina v. Alaska Airlines, Inc., No. 22-CV-203 JLS (BGS), 2022 WL 12 3135913, at *3 (S.D. Cal. Aug. 5, 2022) (noting that “[i]nformation on websites . . . is often 13 not considered an appropriate subject of judicial notice,” and that “[c]ases that do judicially 14 notice information from websites often rely on the doctrine of incorporation by reference 15 when the complaint necessarily relies on information appearing on a[] website”) (citations 16 and internal quotation marks omitted). Thus, prudence cautions the Court to hesitate before 17 determining that the search results from TripAdvisor are beyond controversy. 18 In sum, the Court GRANTS IN PART and DENIES IN PART Defendant’s 19 Request for Judicial Notice. See ECF No. 15-2. Specifically, the Court judicially notices 20 Defendant’s Exhibits (1), (2), and (4)–(6), but declines to judicially notice Exhibit (3). See 21 id. 22 MOTION TO DISMISS 23 Defendant moves to dismiss the FAC on the basis of both (1) Federal Rule of Civil 24 Procedure 12(b)(1), asserting Plaintiff’s lack of standing; and (2) Federal Rule of Civil 25 Procedure 12(b)(6), asserting Plaintiff’s failure to state a claim. See generally 26 Memorandum of Points and Authorities in Support of Motion to Dismiss (“Mem.,” ECF 27 No. 15-1). The Court addresses each basis in turn. 28 / / / 1 I. Standing 2 A. Legal Standard 3 “A party invoking federal jurisdiction has the burden of establishing that [he] has 4 satisfied the ‘case-or-controversy’ requirement of Article III of the Constitution; standing 5 is a ‘core component’ of that requirement.” D’Lil v. Best W. Encina Lodge & Suites, 538 6 F.3d 1031, 1036 (9th Cir. 2008) (citation omitted). Further, courts “have an independent 7 obligation ‘to examine jurisdictional issues such as standing [sua sponte].’” Wilson v. 8 Lynch, 835 F.3d 1083, 1091 (9th Cir. 2016) (alteration in original) (quoting B.C. v. Plumas 9 Unified Sch. Dist., 192 F.3d 1260, 1264 (9th Cir. 1999)). “Only injunctive relief is 10 available under Title III of the ADA.” Barnes v. Marriott Hotel Servs., Inc., No. 15-CV- 11 01409-HRL, 2017 WL 635474, at *7 (N.D. Cal. Feb. 16, 2017). 12 Article III standing requires that a plaintiff (1) suffered an injury in fact, (2) that is 13 fairly traceable to the challenged conduct of the defendant, and (3) that it is likely to be 14 redressed by a favorable judicial decision. Spokeo Inc. v. Robins, 578 U.S. 330, 338 (2016). 15 To establish standing to seek injunctive relief, a plaintiff must show that “he [i]s likely to 16 suffer future injury.” See City of L.A. v. Lyons, 461 U.S. 95, 105 (1983). “[A]n ADA 17 plaintiff can establish standing to sue for injunctive relief either by demonstrating 18 deterrence, or by demonstrating injury-in-fact coupled with an intent to return to a 19 noncompliant facility.” Chapman v. Pier 1 Imports, Inc., 631 F.3d 939, 944 (9th Cir. 20 2011). “‘[S]ome day’ intentions [to return to a noncompliant facility] . . . are insufficient 21 to establish standing.” Barnes, 2017 WL 635474, at *7. An ADA plaintiff therefore “lacks 22 standing if he is indifferent to returning to the store or if his alleged intent to return is not 23 genuine.” Chapman, 631 F.3d at 953. Further, an ADA plaintiff cannot establish standing 24 by alleging an injury “based only on conclusory statements unsupported by specific facts.” 25 Barnes, 2017 WL 635474, at *7. 26 / / / 27 / / / 28 / / / 1 B. Analysis 2 Here, Defendant argues that Plaintiff lacks standing because (1) Plaintiff has not 3 alleged an injury in fact and (2) the FAC fails to establish Plaintiff has any bona fide intent 4 to return to the Hotel. See generally Mem. The second and third elements of Article III’s 5 standing requirements are not at issue; Defendant’s alleged noncompliance with Title III is 6 the source of Plaintiff’s injury, and an injunction requiring Defendant to comply with the 7 ADA would redress it. Thus, the only questions are whether Plaintiff has adequately 8 alleged (1) an injury in fact and (2) an intent to return to the Hotel. 9 1. Injury in Fact 10 The first requirement of standing is that the Plaintiff must have suffered an “injury 11 in fact,” which the Supreme Court has defined as “an invasion of a legally protected interest 12 which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or 13 hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal citations 14 and quotations omitted). “A concrete injury must be de facto; that is, it must actually exist.” 15 Spokeo, Inc., 578 U.S. at 340. “Particularized means that the injury must affect the plaintiff 16 in a personal and individual way.” Lujan, 504 U.S. at 560 n.1. In the context of the ADA, 17 this means Plaintiff himself must suffer an injury as a result of Defendant’s noncompliance 18 with the ADA. 19 Defendant argues that Plaintiff’s injury is not concrete because Plaintiff was merely 20 wandering around the Hotel with no intention of doing anything other than search for ADA 21 violations. See Mem. at 9. Defendant also argues that Plaintiff’s injury is not particularized 22 because Plaintiff has not alleged that he intended to stay at the Hotel, and Plaintiff has 23 failed to identify barriers that relate to his own particular disability. Id. at 11. 24 The court disagrees with Defendant. First, the injury is sufficiently concrete because 25 Plaintiff alleged he visited the Hotel on July 2, 2021, with the intention of staying at the 26 Hotel. See FAC ¶ 29. Second, the injury is sufficiently particularized because Plaintiff 27 himself suffered the alleged harm, not some other person. See id. ¶ 47. Third, the identified 28 barriers, which include an access aisle slope that was too steep and not connected to an 1 accessible route, relate to wheelchair users like Plaintiff. See id. ¶ 34. Although Plaintiff 2 can use a prosthetic leg for short distances, this secondary method of mobility does not 3 negate the fact that Plaintiff is a wheelchair user. Indeed, Plaintiff alleges that use of his 4 prosthesis is painful and that he prefers, when possible, to use his wheelchair. Id. ¶ 4. 5 Thus, the identified barriers are directly related to and impact Plaintiff’s physical disability. 6 By alleging that he is currently deterred from equal access to the Hotel, Plaintiff has stated 7 sufficient facts to show concrete, particularized harm. 8 In addition to suffering a concrete injury particular to himself, Plaintiff must also 9 suffer actual or imminent harm in order to satisfy the injury-in-fact prong of the standing 10 analysis. Lujan, 504 U.S. at 560. “[A] disabled individual who is currently deterred from 11 patronizing a public accommodation due to a defendant’s failure to comply with the ADA 12 has suffered ‘actual injury.’” See Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 13 1138 (9th Cir. 2002). “Similarly, a plaintiff who is threatened with harm in the future 14 because of existing or imminently threatened non-compliance with the ADA suffers 15 ‘imminent harm.’” See id. 16 Here, Plaintiff claims that (1) he visited the Hotel on July 2, 2021, with the intention 17 of staying at the Hotel, see FAC. ¶¶ 29, 34; (2) he could not access the Hotel as a wheelchair 18 user because the access aisle slope was too steep and did not connect to an accessible route, 19 see id. ¶ 34; and (3) he would stay at the Hotel if it were accessible, see id. ¶¶ 46–47. The 20 Court finds that such allegations are sufficient to establish actual or imminent harm for 21 purposes of standing. 22 2. Intent to Return 23 For an ADA plaintiff to establish standing to seek injunctive relief, they must 24 demonstrate a genuine intent to return to the allegedly noncompliant facility. See 25 Chapman, 631 F.3d at 944, 953. “In determining whether a plaintiff’s likelihood of return 26 is sufficient to confer standing for injunctive relief, courts have examined factors including: 27 (1) the proximity of the business to the plaintiff’s residence, (2) the plaintiff’s past 28 patronage of the business, (3) the definitiveness of the plaintiff’s plans to return, and (4) 1 the plaintiff’s frequency of travel near the defendant.” Crandall v. Starbucks Corp., 249 2 F. Supp. 3d 1087, 1106 (N.D. Cal. 2017) (citation and footnote omitted). When evaluating 3 whether the intent to return is genuine, “a court must engage in a fact-intensive inquiry to 4 determine whether the plaintiff . . . would return to the establishment if the establishment 5 were compliant with the ADA.” Vogel v. Salazar, No. SACV 14-00853-CJC (DMFx), 6 2014 WL 5427531, at *2 (C.D. Cal. Dec. 9, 2014). The Court will assume the truth of 7 Plaintiff’s factual allegations and draw all reasonable inferences in favor of Plaintiff. 8 Whisnant v. United States, 400 F.3d 1177, 1179 (9th Cir. 2005); Safe Air for Everyone, 373 9 F.3d at 1039. 10 Defendant argues that Plaintiff’s lack of credibility undermines his professed intent 11 to return. See Mem. at 26. Specifically, Defendant accuses Plaintiff of conducting 12 “meaningless travel” to various hotels across the country with the express purpose of 13 finding ADA violations that will provide ammunition for lawsuits against those hotels. See 14 id. at 26–28. Moreover, Defendant labels Plaintiff a “serial ADA litigant” and argues that 15 his past ADA litigation calls into question the sincerity of his intention to return to the 16 Hotel. Id. Although a plaintiff’s intent to return needs to be genuine, at this stage of the 17 lawsuit, the Court must take Plaintiff’s allegations as true unless “contradict[ed by] matters 18 properly subject to judicial notice or by exhibit.” Sprewell v. Golden State Warriors, 266 19 F.3d 979, 988 (9th Cir.), opinion amended on denial of reh’g, 275 F.3d 1187 (9th Cir. 20 2001). Moreover, the Court notes that being litigious does not deprive a plaintiff of 21 standing. See Brooke v. Bhakta, No. CV-17-996-MWF (AFMX), 2017 WL 11635793, at 22 *1 (C.D. Cal. Nov. 1, 2017) (“Plaintiff is indeed a serial ADA litigator and her and her 23 attorney’s litigiousness surely vexes many hotel operators such as Defendants, as there is 24 little doubt that Plaintiff visits accommodations for the primary purpose of spotting ADA 25 violations and filing lawsuits. But that is permissible under the current statutory regime 26 and Ninth Circuit precedent. Plaintiff’s litigious motivation does not deprive her of 27 standing.”). Nor does a plaintiff’s past litigation history necessarily contradict or call into 28 question an alleged intention to return to a public accommodation. See D’Lil v. Best W. 1 Encina Lodge & Suites, 538 F.3d 1031, 1040 (9th Cir. 2008) (rejecting district court’s 2 adverse credibility determination due to its reliance on plaintiff’s litigation history and 3 finding that courts “must be particularly cautious about affirming credibility 4 determinations that rely on a plaintiff’s past ADA litigation,” as “most ADA suits are 5 brought by a small number of private plaintiffs who view themselves as champions of the 6 disabled”). 7 Here, Plaintiff alleges an intent to return to the Hotel once it is represented to him 8 that the Hotel is accessible to him. See FAC. ¶ 46. Plaintiff claims he stops in the San 9 Diego Hotel Circle area at least two to four times per year to lodge, and Plaintiff intends to 10 visit San Diego and SeaWorld in the spring of 2023. Id. ¶¶ 24, 42. The Hotel is convenient 11 for Plaintiff because it provides “an excellent lodging stop before turning onto Interstate 5 12 from Interstate 8 traveling North to Los Angeles”; is located near “numerous budget 13 eateries”; and is located “within a short distance to SeaWorld,” which Plaintiff intends to 14 visit again. Id. ¶¶ 25–27. The Court finds that Plaintiff has pled specific facts evidencing 15 a genuine desire to return to the Hotel. Compare, e.g., Doran, 524 F.3d at 1040–41 (9th 16 Cir. 2008) (holding plaintiff had standing where he alleged he had visited a store on ten to 17 twenty prior occasions, the store was near his favorite fast food restaurant in Anaheim, he 18 visited Anaheim at least once a year, and he was deterred from visiting the store because 19 of accessibility barriers), and Parr v. L&L Drive-Inn Rest., 96 F. Supp. 2d 1065, 1079 (D. 20 Haw. 2000) (finding future injury likely where plaintiff lived close to the restaurant, 21 enjoyed the taste of a restaurant’s food, had visited other restaurants in the chain, and 22 intended to visit the restaurant in the future), with Vogel, 2014 WL 5427531, at *2 (plaintiff 23 lacked standing where he “merely attest[ed] that because of ‘physical and intangible’ 24 barriers, he has been ‘deterred’ and ‘continues to be deterred from visiting the 25 Restaurant’”), and Strojnik v. Bakersfield Convention Hotel I, LLC, 436 F. Supp. 3d 1332, 26 1342 (E.D. Cal. 2020) (finding plaintiff lacked standing to bring ADA claim against hotel 27 when he did not allege concrete plans to travel to the property). Therefore, Plaintiff has 28 demonstrated injury-in-fact coupled with an intent to return to a noncompliant facility. 1 C. Conclusion 2 Plaintiff has adequately demonstrated harm that is both (1) concrete and 3 particularized as well as (2) actual or imminent. Moreover, Plaintiff has sufficiently 4 pleaded facts showing a genuine intent to return to Defendant’s Hotel. Accordingly, the 5 Court finds that Plaintiff has established standing to seek injunctive relief and DENIES 6 the Motion to the extent it argues otherwise. 7 II. Failure to State a Claim 8 A. Legal Standard 9 Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the 10 defense that the complaint “fail[s] to state a claim upon which relief can be granted,” 11 generally referred to as a motion to dismiss. The Court evaluates whether a complaint 12 states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil 13 Procedure 8(a), which requires a “short and plain statement of the claim showing that the 14 pleader is entitled to relief.” Although Rule 8 “does not require ‘detailed factual 15 allegations,’ . . . it [does] demand more than an unadorned, the-defendant-unlawfully- 16 harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 17 Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “a plaintiff’s obligation to 18 provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and 19 conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 20 Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). A 21 complaint will not suffice “if it tenders ‘naked assertion[s]’ devoid of ‘further factual 22 enhancement.’” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 557). 23 To survive a motion to dismiss, “a complaint must contain sufficient factual matter, 24 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting 25 Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible 26 when the facts pled “allow the court to draw the reasonable inference that the defendant is 27 liable for the misconduct alleged.” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 28 556). That is not to say that the claim must be probable, but there must be “more than a 1 sheer possibility that a defendant has acted unlawfully.” Id. Facts “‘merely consistent 2 with’ a defendant’s liability” fall short of a plausible entitlement to relief. Id. (quoting 3 Twombly, 550 U.S. at 557). Further, the Court need not accept as true “legal conclusions” 4 contained in the complaint. Id. This review requires context-specific analysis involving 5 the Court’s “judicial experience and common sense.” Id. at 678 (citation omitted). 6 “[W]here the well-pleaded facts do not permit the court to infer more than the mere 7 possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the 8 pleader is entitled to relief.’” Id. Finally, “[t]he court need not . . . accept as true allegations 9 that contradict matters properly subject to judicial notice or by exhibit.” Sprewell, 266 10 F.3d at 988. 11 Where a complaint does not survive the Rule 12(b)(6) analysis, the Court will grant 12 leave to amend unless it determines that no modified contention “consistent with the 13 challenged pleading . . . [will] cure the deficiency.” DeSoto v. Yellow Freight Sys., Inc., 14 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schriber Distrib. Co. v. Serv-Well Furniture 15 Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). “The Ninth Circuit has instructed that the policy 16 favoring amendments ‘is to be applied with extreme liberality.’” Abels v. JBC Legal Grp., 17 P.C., 229 F.R.D. 152, 155 (N.D. Cal. 2005) (quoting Morongo Band of Mission Indians v. 18 Rose, 893 F.2d 1074, 1079 (9th Cir. 1990)). 19 B. Analysis 20 In the alternative, Defendant claims that Plaintiff fails to state any claim. See 21 generally Mem. 22 1. ADA Claim 23 Title III of the ADA prohibits discrimination by places of public accommodation. 24 Vogel v. Rite Aid Corp., 992 F. Supp. 2d 998, 1007 (C.D. Cal. 2014). “To prevail on a 25 Title III discrimination claim, the plaintiff must show that (1) [he] is disabled within the 26 meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a 27 place of public accommodation; and (3) the plaintiff was denied public accommodations 28 by the defendant because of [his] disability.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 1 (9th Cir. 2007). Where, as here, the plaintiff seeks to establish discrimination based on an 2 architectural barrier, “the plaintiff must also prove that: (1) the existing facility at the 3 defendant’s place of business presents an architectural barrier prohibited under the ADA, 4 and (2) the removal of the barrier is readily achievable.” Parr, 96 F. Supp. 2d at 1085 5 (citing Gilbert v. Eckerd Drugs, No. CIV. A. 97–3118, 1998 WL 388567, at *2 (E.D. La. 6 July 8, 1998)). 7 Despite Defendant’s arguments to the contrary, here, the Court finds that Plaintiff 8 has adequately stated a claim under the ADA. First, Plaintiff has established he is disabled 9 under the ADA. The ADA defines a disability as “a physical or mental impairment that 10 substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A). Walking 11 is considered a “major life activit[y].” 42 U.S.C. § 12102(2)(A). Plaintiff is missing a leg 12 and uses a wheelchair for mobility, FAC. ¶ 1; therefore, Plaintiff is disabled within the 13 meaning of the ADA, see, e.g., Lozano v. C.A. Martinez Fam. Ltd. P’ship, 129 F. Supp. 3d 14 967, 972 (S.D. Cal. 2015) (concluding plaintiff who could not walk and used a wheelchair 15 for mobility was “disabled” within the meaning of the ADA). 16 Second, Plaintiff has established that Defendant’s Hotel is a place of public 17 accommodation. Plaintiff asserts that Defendant owns or operates the Hotel, see FAC ¶ 7, 18 and “an inn, hotel, motel, or other place of lodging” is a place of public accommodation as 19 defined within the ADA. 42 U.S.C. § 12181(7)(A). This element is therefore satisfied. 20 As to the third and final element, Plaintiff alleges that Defendant denied him equal 21 access to the Hotel due to ADA-prohibited architectural barriers. See, e.g., FAC. ¶ 34(a) 22 (alleging curb ramp is located on accessible parking access aisle); 36 C.F.R. Pt. 1191, App. 23 D, § 406.5 (requiring curb ramps to not project into parking access aisles); FAC ¶ 34(b) 24 (alleging access aisle does not connect to an accessible route); 36 C.F.R. Pt. 1191, App. D, 25 § 502.3 (requiring access aisles to adjoin an accessible route); FAC ¶ 34(c) (alleging access 26 aisle slope is too steep); 36 C.F.R. Pt. 1191, App. D, § 502.4 (requiring access aisle be the 27 same level as the parking spaces it serves). Plaintiff further alleges that removal of these 28 / / / 1 barriers is readily achievable “without much difficulty or expense” and that alternative 2 accommodations are available. Id. ¶ 40. 3 Accordingly, taking the allegations in the FAC as true, as the Court must in 4 reviewing Plaintiff’s Motion, see TeleVideo, 826 F.2d at 917–18, Plaintiff has pleaded a 5 prima facie claim under Title III of the ADA. See, e.g., Johnson v. Hall, No. 2:11-cv-2817- 6 GEB-JFM, 2012 WL 1604715, at *3 (E.D. Cal. May 7, 2012) (finding sufficient a Title III 7 discrimination claim where the disabled plaintiff alleged that he had been denied access to 8 the defendant’s place of public accommodation because of readily removable architectural 9 barriers, including a lack of an accessible entrance). 10 2. State Law Claims 11 Plaintiff additionally asserts claims under the Unruh Act, Cal. Civ. Code §§ 51–53, 12 and the DPA, id. §§ 54–54.3. See FAC. ¶¶ 53–62. Defendant argues that these state law 13 claims must be dismissed because Plaintiff cannot truthfully allege that he was actually 14 denied access to the Hotel and fails to explain how any alleged barriers impaired his ability 15 to access the Hotel. See Mem. at 28–29. 16 The Unruh Act states that “[a]ll persons within the jurisdiction of this state are free 17 and equal, and no matter what their . . . disability . . . are entitled to the full and equal 18 accommodations, advantages, facilities, privileges, or services in all business 19 establishments of every kind whatsoever.” Cal. Civ. Code § 51(b). A violation of the ADA 20 is also necessarily a violation of the Unruh Act., see Cal. Civ. Code § 51(f) (“A violation 21 of the right of any individual under the [ADA] also constitutes a violation of this section.”); 22 Vogel, 992 F. Supp. 2d at 1011, and the DPA, see Cal. Civ. Code § 54.1(d) (“A violation 23 of the right of an individual under the [ADA] also constitutes a violation of this section[.]”). 24 Because Plaintiff has sufficiently alleged an ADA claim, see supra Section II.B.1, he has 25 also sufficiently alleged claims under both the Unruh Act and the DPA. 26 / / / 27 / / / 28 / / / 1 Cc. Conclusion 2 Plaintiff has sufficiently pleaded claims under the ADA, the Unruh Act, and the 3 ||DPA. Accordingly, the Court DENIES Defendant’s Motion to the extent it argues that 4 || Plaintiff fails to state a claim. 5 CONCLUSION 6 In light of the foregoing, the Court GRANTS IN PART and DENIES IN PART 7 || Defendant’s Request for Judicial Notice (ECF No. 15-2) and DENIES Defendant’s Motion 8 ||to Dismiss (ECF No. 15). 9 IT IS SO ORDERED. 10 |! Dated: December 5, 2022 pace it. J, ieee itee- 11 on. Janis L. Sammartino D United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28