Judge Theodore R. Howard, Case 20-1168486 2022-09-08 Tentative Ruling

Judge: Theodore R. Howard, Case: 20-1168486, Date: 2022-09-08 Tentative Ruling

Before the court this date are three motions:

Motion 1: Plaintiffs Gilbert Salinas (“Salinas”) and Orlando Garcia’s (“Garcia”) (together “plaintiffs”) unopposed motion to set aside the dismissals of 19 consolidated Hotel Website Cases (ROA # 265, 294, 295) is DENIED.

All of the related actions plead violations of the ADA and Unruh Civil Rights Act, that the defendants violated 28 C.F.R. §36.302(e)(1)(ii), which requires hotels to include certain information on their websites to allow disabled individuals to discern if the hotel is accessible to them.

On 8/30/2021, the court issued “Minute Order No. 1” (ROA #45) regarding actions defined as the “Hotel Website Cases”.

Per that Minute Order, Garcia vs. Resort Rental LLC is the lead action, and for all of the Hotel Website Cases filed by the Center for Disability Access as counsel for plaintiffs:

“(d) All motions, petitions and applications brought to the court for adjudication in any case subject to this order shall be served on all parties having registered an appearance in any of the cases, and the court will accept relevant and timely filings from such interested parties.” (ROA #45, 8/30/2021 Minute Order No. 1 §2 (d)).

Center for Disability Access settled one of the consolidated actions, but mistakenly filed a request for dismissal, with prejudice, in 19 pending actions. (See ROA #192) On behalf of all plaintiffs in all 19 cases, Salinas and Garcia seek relief from the dismissals under of CCP §473(b). The motion is unopposed.

This motion was initially set for hearing on 5/26/2022. On the date, the court found service was defective because plaintiff did not serve all parties who have entered an appearance in any of the consolidated actions in violation of the 8/30/2021 order. The court therefore continued the motion until July 7, 2022 and ordered the plaintiff to file proof of service demonstrating compliance with the court’s 8/30/2021 Minute Order and CCP §§1005 and 1014. (See ROA #368).

On 7/7/2022, the court found that plaintiff did not comply with the 5/26/2022 order. He still had not filed a proof of service showing that the motion to vacate the dismissals in 19 actions was served on all parties who have entered an appearance in any of the actions. (ROA #407) The court therefore ordered the matter continued “one more time” until 8/11/2022 and stated, “Plaintiff must comply with the orders of 8/30/3021 and 5/26/2022 regarding service.” (Id.)

On 8/4/2022, the court, on its own motion, continued this motion to 9/8/2022.

Plaintiffs still have not complied with the court’s 8/30/2021, 5/26/2022 and 7/7/2022 orders. No proof of service has been filed showing service of this motion on all parties who have entered an appearance in any of the consolidated actions. This motion has been served on a single defendant, “San Clemente Inn Vacation Plan Owners Association.”

Due to plaintiffs multiple failures to comply with this court’s orders, the motion is DENIED.

Moving party to give Notice of Ruling.

2. The unopposed demurrer by defendants MSP Costa Mesa, LP and MSP Costa Mesa, GP LLC (together “MSP/defendants”) to the complaint by Orlando Garcia in case number 30-2021-01178036 (ROA #422, 417, 419 and 415) is SUSTAINED WITHOUT LEAVE TO AMEND.

Preliminary Issue: Defendants’ Request for Judicial Notice (“RJN”)

GRANTED as to Exhibits. 3-7. The court takes judicial notice of the court records but not the truth of the matters asserted therein. (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482-482)

1. A copy of the landing page and accessibility tab of defendant’s website identified in the complaint

2. A copy of relevant pages from defendant’s website showing the various accessible room descriptions

3. U.S. v. Hilton Worldwide Inc. No. 10-cv-1924, ECF No. 5 (D.D.C. Nov. 29, 2010 Consent Decree

4. Decl. of Orlando Garcia filed in Garcia v. Montebello Hills Travelodge, L.P.

5. Order sustaining demurrer in Perri v. Forge-Vidovich Hotel, LP, Case No. 19CV352571 (Santa Clara Sup. Ct. Jul. 22, 2020)

6. Order Sustaining Demurrer in Garcia v. Inn at Laguna Beach, LLC, Case No. 30-2021-01177752-CU-CR-CJC (Orange Cty. Sup. Ct. June 11, 2021).

7. Order Sustaining Demurrer in Salinas v. 665 Bush Street, Inc., Case No. CGC-21-591616 (San Francisco Cty. Sup. Ct. August 31, 2021)

The request is DENIED as to Exhibits 1 and 2. California law does not allow the court to take judicial notice of the factual content of defendant’s website. (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 889; Searles Valley Minerals Operations, Inc. v. State Bd. Of Equalization (2008) 160 Cal.App.4th 514, 519).

However, the court considers the content of MSP’s website, over which there is no dispute, as it forms the basis of the action and is incorporated into the complaint by reference at ¶¶16, 18-21. (See Qualcomm, Inc. v. Certain Underwriters at Lloyd’s, London (2008) 161 Cal.App.4th 184, 191).

Demurrer Standards

The demurrer tests the sufficiency of the complaint as a matter of law. (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034 (“Berg”)). The demurrer admits all material facts properly pleaded but not contentions, deductions or conclusion of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318) The pleading is given a reasonable interpretation, reading it as a whole and its parts in context. (Id.)

The court assumes the truth of the properly pleaded factual allegations, facts that can reasonably be inferred from those which are expressly pleaded and matters of which judicial notice is taken. (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 725). While a general demurrer does not typically reach affirmative defenses, it will lie where the complaint includes allegations that “clearly disclose some defense or bar to recovery.” (Id. at p. 726).

Merits

Plaintiff alleges MSP’s hotel reservation website violates the Americans with Disabilities Act (“ADA”) and Unruh by failing to comply with accessibility standards set forth in 28 C.F.R. § 36.302(e)(1) the “Reservations Rule”.

Plaintiff suffers from cerebral palsy and is substantially limited in his ability to walk. (Compl. ¶1). He has the use of only one arm. He uses a wheelchair, walker or cane for mobility, (Id.) and he is challenged in his ability to stand, ambulate, reach objects mounted at heights above his shoulders, transfer from his chair to other equipment and maneuver around fixed objects. (Id. ¶14)

Plaintiff planned on making a trip in November 2020 to Costa Mesa. (Id. ¶12) He chose the Costa Mesa Marriott because it was at a desirable price and location. (Id. ¶13)

On October 11, 2020, he went to the Costa Mesa Marriott Irvine reservation website at https://www.marriott.com/hotels/travel/snast-costa-mesa-marriott seeking to book an “accessible room”, (Id. ¶16) but there was insufficient information about “accessible features “in the “accessible rooms” at the Hotel to permit him to assess independently whether a given hotel room would work for him. (Id. ¶17)

Plaintiff does not need an exhaustive list of accessibility features, but needs a handful of features including whether the interior doors provide at least 32” of clearance, whether he can get into and out of the bed – that there is at least 30” width on the side of the bed, whether the desk provides knee and toe clearance that is at least 27” high and 30” wide, and runs at least 17 “deep, whether the toilet seat height is between 17 and 19 inches and has two required grab bars to facilitate transfer, whether the sink provides knee clearance of 27” high and 30” wide and 17” deep, whether the plumbing under the sink is wrapped with insulation, whether the lavatory mirror is mounted at a lowered height so that wheelchair users can use it, what type of shower there is, standard roll in or alternate roll in and whether it has an in shower seat, whether there are grab bars mounted on the walls, whether there is a detachable hand held shower wand for washing himself and whether the wall mounted accessories and equipment are all within 48 inches in height. (Id.¶22)

Plaintiff alleges that MSP’s website fails to identify and describe the core accessibility features in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his accessibility needs (Id.¶25).

MSP generally demurs to the entire complaint on the grounds that the opposite is true, that its reservations website contains far more information about the accessibility features than the Reservation Rule requires and thus plaintiff’s complaint fails to plead a violation of the ADA, without which the Unruh cause of action fails too.

To establish a violation of Title III of the ADA, a plaintiff must show (1) a covered disability; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation and (3) that plaintiff was denied public accommodations by the defendant because of the disability. (Martinez v. San Diego Country Credit Union (2020) 50 Cal.App.5th 1048, 1060; Arizona ex re. Goddard v. Harkins Amusement Enters., Inc. (9th Cir. 2010) 603 F.3d 666, 670).).

At issue here is the third element, whether the complaint sufficiently pleads that Garcia was denied public accommodations by MSP because of his disability. The third element is satisfied when the plaintiff establishes a violation of accessibility standards. (Rodrgiguez v. Barrita, Inc. (N.D. CA 2014) 10 F.Supp.3d 1062, 1073).

The Reservations Rule

The accessibility standards at issue here are those set forth in 28 C.F.R. § 36.302(e)(1), the Reservations Rule, which states in pertinent part:

“(e)(1) Reservations made by places of lodging. A public accommodation that owns, leases (or leases to), or operates a place of lodging shall, with respect to reservations made by any means, including by telephone, in-person, or through a third party—

(i) Modify its policies, practices, or procedures to ensure that individuals with disabilities can make reservations for accessible guest rooms during the same hours and in the same manner as individuals who do not need accessible rooms;

(ii) Identify and describe accessible features in the hotels and guest rooms offered through its reservations service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility”

The DOJ provides the following commentary to the above rule: “The Department recognizes that a reservations system is not intended to be an accessibility survey. However, specific information concerning accessibility features is essential to travelers with disabilities. Because of the wide variations in the level of accessibility that travelers will encounter, the Department cannot specify what information must be included in every instance. 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 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 bathing facility (e.g., roll-in shower), and communications features available in the room (e.g., alarms and visual notification devices). Based on that information, many individuals with disabilities will be comfortable making reservations. For older hotels with limited accessibility features, information about the hotel should include, at a minimum, information about accessible entrances to the hotel, the path of travel to guest check-in and other essential services, and the accessible route to the accessible room or rooms. In addition to the room information described above, these hotels should provide information about important features that do not comply with the 1991 Standards. For example, if the door to the “accessible” room or bathroom is narrower than required, this information should be included (e.g., door to guest room measures 30 inches clear). This width may not meet current standards but may be adequate for some wheelchair users who use narrower chairs. In many cases, older hotels provide services through alternatives to barrier removal, for example, by providing check-in or concierge services at a different, accessible location. Reservations services for these entities should include this information and provide a way for guests to contact the appropriate hotel employee for additional information. [See, 28 C.F.R. Pt. 36, App. A, “Title III Regulations 2010 Guidance and Section-by-Section Analysis” (the “2010 Guidance”)]

The DOJ guidance interpreting requirements of the ADA is entitled to substantial deference unless it is clearly erroneous or inconsistent with the regulation. (Kohler v. Presidio Intern., Inc. (2015) 782 F.3d 1064, 1069) Neither of the parties assert that the Guidance is erroneous or inconsistent with the regulation.

While the Complaint pleads that the subject website does not provide any information about the accessibility of the interior doors, clearance around the bed, desk clearance, the toilet seat height, bathroom grab bars, accessibility of the sink and vanity mirror, whether there is a roll in shower, and whether there is a detachable handheld shower wand (Compl. ¶22), the contrary is true.

MPS’s website in fact lists “Accessibility Features” on the “Overview” tab, under “Hotel Information”. There the website details the “Guest Room Accessibility” including, among other features, “Accessible Vanities, Adjustable Height Hand-Held Shower Wand, Bathtub Grab Rails, Mobility Accessible Rooms, Non-slip Grab Rails in the Bathroom, Roll-in shower, and toilet seat at wheelchair height.” The hotel website also provides a telephone number for guests to call regarding more information about the physical features of the accessible rooms. Furthermore, under the Accommodations Tab, a guest may click on a particular room type which also provides “Accessible Room Features” for the specific room selected.

Allegations in a pleading which are contrary to facts in a document incorporated into a complaint will be disregarded. (Breneric Associates v. City of Del Mar (1998) 69 Cal.App.4th 166, 180). MSP has thus demonstrated that the website actually provides the information which the plaintiff alleges is absent.

What remains then is whether MSP’s website must include information about the accessibility of the desk in the guestroom Garcia selected. The DOJ Guideline expressly states the reservations system is not intended to be an accessibility survey. It does not require the level of detail plaintiff asserts.

Moreover, Love v. Marriott Hotel Servs. (9th Cir. 2022) 40 F.4th 1043, 1045-1049 concluded that the Marriott website in that case satisfied the DOJ Guidance and thus the Reservations Rule. The decisions of lower federal courts interpreting federal law, while not binding on state courts, are persuasive and entitled to great weight on federal questions. (Etcheverry v. Tri-Ag Service, Inc. (2000) 22 Cal.4th 316, 320; See also Baskin v. Hughes Realty, Inc. (2018) 25 Cal.App.5th 184, 200 noting that because the Justice Department is authorized to enforce the ADA, its guidance notes are entitled to deference by courts seeking to construe the ADA.)

MSP is likewise a Marriott facility, with the same website features as those described in Love. Based on Love, and for all of the reasons discussed above, the court finds that MSP’s website satisfies the Reservations Rule too.

MSP has demonstrated that plaintiff’s complaint fails to plead sufficient facts to demonstrate a violation of Title III of the ADA or Unruh.

MSP’s DEMURRER IS SUSTAINED WITHOUT LEAVE TO AMEND.

3. The unopposed demurrer by defendant USA Hotel Group LLC’s (“UHG”) to the complaint by Rafael Arroyo (“Arroyo/plaintiff”) in case number 30-2020-01173676 (ROA # 400, 402, 396, 398) is SUSTAINED WITHOUT LEAVE TO AMEND.

Preliminary Issue: UHG’s RJN

GRANTED as to Exhibits 4-6. The court takes judicial notice of the court records but not the truth of the matters asserted therein. (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482-482)

1. A copy of the landing page and accessibility tab of Expedia’s website page for Four Points Sheraton Anaheim.

2. A copy of relevant pages from defendant’s (Four Point’s) website showing accessibility features offered.

3. A list of plaintiff’s cases filed in California and Federal Court taken from Pacer.

4. U.S. v. Hilton Worldwide Inc. No. 10-cv-1924, ECF No. 5 (D.D.C. Nov. 29, 2010 Consent Decree

5. Order sustaining demurrer in Perri v. Forge-Vidovich Hotel, LP, Case No. 19CV352571 (Santa Clara Sup. Ct. Jul. 22, 2020)

6. Order Sustaining Demurrer in Win-Win Investment Partners, Ltd., Case No. 21LBCV00122 (LA Sup. Ct. Sept. 28, 2021)

However, the court considers the content of Expedia’s website over which there is no dispute, as it forms the basis of the action and is incorporated into the complaint by reference at ¶¶15-16. (See Qualcomm, Inc. v. Certain Underwriters at Lloyd’s, London (2008) 161 Cal.App.4th 184, 191). The RJN is also DENIED is to Exhibit 2 and Exhibit 3 as the matter is not relevant to the court’s determination of this demurrer. (See State Compensation Ins. Fund v. ReadyLink Healthcare, Inc. (2020) 50 Cal.App.5th 422, 442-443.)

Merits

Plaintiff is a paraplegic, who is substantially limited in his ability to walk and uses a wheelchair for mobility. (Compl. ¶1)

USA Hotel Group LLC (“UHG”) owns Four Points by Sheraton Anaheim Hotel (“Four Points”). (Id. ¶2)

Plaintiff sues because of the lack of information provided on the hotel’s reservation website that would permit plaintiff to determine if there are rooms that will work for him. (Id.¶7)

Plaintiff planned on making a trip to Anaheim in September 2020 and chose Four Points because of it was at a desirable price and location. (Id.¶¶12-13)

Plaintiff needs an accessible guestroom including clearance around beds, accessible restroom facilities including accessible sinks, tubs or showers and toilets. He needs sufficient maneuvering clearance in and around the guestroom and accessories to be located within an accessible reach range. (Id.¶14)

Plaintiff went to reserve a room at http://expedia/anaheim-hotels-four-points-by-sheraton-anaheim.h13421.hotel-information seeking to book an accessible room on September 16, 2020. Four Points is responsible for providing information about its services to its third-party partners and has control over information provided. (Id.¶15) Plaintiff does not plead that he went to Four Points’ website, only that he went to the third-party reservations website.

Plaintiff found there was little specific information about the accessibility of the rooms but did find an “Accessibility” heading, mentioning features including raised toilet seat, in room accessibility, grab bar near toilet, wheelchair accessible restaurant and wheelchair accessible parking. However, he claims “[t]hese vague and conclusory statements offer little detail". (Id.¶16)

These allegations fail to state sufficient facts to plead an ADA violation because the ADA Standards leave no doubt about the meaning of “accessible”, and for those features additional detail is not necessary since “accessible” is a shorthand way of signaling compliance with the ADA and its implementing regulations. (Love v. Marriott Hotel Servs. (9th Cir. 2022) 40 F.4th 1043, 1049)

As plaintiff admittedly found on Expedia’s website the “accessible” information he also claims was lacking (Compl. ¶16), the complaint, on its face is subject to demurrer, even without considering the website content.

In addition, although plaintiff alleges that there is no “specific information on whether the desk/table in the room is accessible, if the sink and toilet are accessible, or if the room has accessible clear floor space” (Compl. ¶16), the opposite is true.

Expedia’s website in fact does list “low-height desk”, “raised toilet seat”, “in room accessibility", “accessible bathroom” and numerous other accessible features.

The accessibility information alleged in Arroyo’s complaint and listed on Expedia’s website is the same accessible information, and more, as was found to be ADA compliant in Love, supra. So too it is here.

While the moving party argues that it is not responsible for the content of Expedia’s website, the court does not decide this issue because the complaint, on its face, fails to plead sufficient facts to establish that Expedia’s website violates the Reservations Rule.

UHG’s demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

UHG to give Notice of Ruling.