Brooke v. Peterson

185 F.Supp.3d 1203

Theresa Brooke

v.Clay Andro Peterson

Theresa Brooke

v.Tricom Management, Inc.

Theresa Brooke

v.Best Western International Inc.

Theresa Brooke

v.Bahha, LLC

Case Nos. SACV 16-0435 AG (DFMx)

SACV 16-0618 AG (DFMx)

SACV 16-0665 AG (KESx)

SACV 16-0738 AG (AGRx)

United States District Court, C.D. California.

Signed May 13, 2016

Peter K. Strojnik, The Strojnik Firm LLC, Phoenix, AZ, for Theresa Brooke.

Steven E. Boehmer, McDougal Love Eckis Boehmer and Foley, La Mesa, CA, for Clay Andro Peterson.

Royal F. Oakes, Michael A. S. Newman, Hinshaw and Culbertson LLP, " ‘Los Angeles, CA, for Best Western International Inc.

Proceedings: [IN CHAMBERS] ORDER DISMISSING CASES FOR LACK OF JURISDICTION

ANDREW J. GUILFORD, District Judge

1. Initial Impressions

Plaintiff Theresa Brooke has filed several cases in this district — over ninety by the Court's last count — alleging that hotels in the Orange County area are violating the Americans with Disabilities Act ("ADA") by not having pool lifts in their pools or Jacuzzi tubs. Some of those cases, captioned above, were assigned to this Court.

Congress passed the ADA "to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(2). "Its passage was premised on Congress's finding that discrimination against the disabled is ‘most often the product, not of invidious animus, but rather of thoughtlessness and indifference,’ of ‘benign neglect,’ and of ‘apathetic attitudes rather than affirmative animus.’ " Chapman v. Pier 1 Imports (U.S.) Inc. , 631 F.3d 939, 944 (9th Cir. 2011) (quoting Alexander v. Choate , 469 U.S. 287, 295–96, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985) ). This Court is not apathetic to ADA cases. Indeed, as a matter of course, it holds early scheduling conferences in ADA cases to reduce plaintiffs' costs in prosecuting cases that promise only injunctive relief and small statutory awards. But setting aside the Court's view of the ADA, the ADA reflects Congress's policy decision and the Court must faithfully uphold the laws of the United States.

The Court must also uphold Article III of the U.S. Constitution, which extends judicial power only to "cases" or "controversies." The Supreme Court has interpreted Article III to limit judicial power to cases where a plaintiff has "standing," or an injury-in-fact that is caused by the defendant and can be redressed by a favorable ruling. See Lujan v. Defs. of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Such limitations on judicial power are important safeguards in a democracy founded on a balance of power. Ensuring that a court doesn't upset that balance of power is also important to ensure the legitimacy of its decisions. Indeed, limitations on judicial power are so important that "whether or not the parties raise the issue, federal courts are required sua sponte to examine jurisdictional issues such as standing." D'Lil v. Best W. Encina Lodge & Suites , 538 F.3d 1031, 1035 (9th Cir. 2008) (citations and quotation marks omitted). "This self-enforced check is crucial in a nation governed by the rule of law. So courts take this sacred duty seriously and guard their limited jurisdiction jealously." Abramson v. Marriott Ownership Resorts, Inc. , ___ F.Supp.3d ___, ___, 2016 WL 105889, at *1 (C.D. Cal. Jan. 4, 2016) (citation omitted).

With those obligations in mind, the Court analyzes Plaintiff's allegations.

2. Analyzing the Allegations

Each of Plaintiff's complaints raise almost identical allegations that go as follows. Plaintiff is a disabled person who lives in Arizona. Plaintiff calls a hotel in California and asks whether it has a pool lift or other means of access to the hotel's pool or Jacuzzi tub. A hotel representative says no. Plaintiff's agent, who is allegedly an expert in ADA accessibility guidelines, then visits the hotel and verifies that the hotel doesn't have a pool lift. Plaintiff alleges that she intends to return to Orange County on an unspecified date "for business, pleasure or medical treatment" but that she is deterred from staying at the hotel because it doesn't have a pool lift. Plaintiff or an agent intend to "return" to the hotel to see if it still violates the ADA. But for the access barriers, Plaintiff would allegedly stay at the hotel in the "near future." Plaintiff seeks injunctive relief under the ADA, and declaratory relief, statutory damages, costs, and attorney fees under California's Unruh Civil Rights Act and California's Disabled Persons Act.

Plaintiff never alleges or otherwise asserts that she has visited the hotels.

3. Assessing the Absent Assertion

That absent assertion about visiting the hotels stood out to the Court, which typically handles multiple ADA cases each week, usually filed by the same plaintiffs who have committed themselves to making the world a more accessible place for persons with disabilities. In those cases, the plaintiffs invariably allege that they have encountered at least one barrier when visiting the place they are suing.

So without the allegation that Plaintiff had visited the hotels, or even personally encountered barriers there, the Court was concerned that Plaintiff lacked standing to bring her cases. The Court therefore issued Orders to Show Cause ("OSC's") as to why the cases should not be dismissed for lack of jurisdiction. In its OSC's, the Court stated that it was particularly attuned to the issue of standing because of a recent decision involving the same Plaintiff and same lawyer that questioned Plaintiff's standing.See Brooke v. Kalthia Group Hotels , No. 15–CV–1873–GPC (KSC), 2015 WL 7302736 (S.D. Cal. Nov. 11, 2015).

4. Reviewing the Responses

After reviewing Plaintiff's responses to the OSC's, the Court was left with more questions than answers. For example, Plaintiff argued that under the Ninth Circuit's decision in Pickern v. Holiday Foods , 293 F.3d 1133, 1135 (9th Cir. 2002), Plaintiff could have standing without ever visiting the hotels because her expert agent gave her actual knowledge about the hotels' barriers. As described later in this Order, the Court questioned that interpretation of Pickern .

As another example, Plaintiff cited two Ninth Circuit cases for the proposition that the Court should "refrain from resolving" the question of Plaintiff's intent to return, which Plaintiff argued was "inextricably intertwined" with the hotels' liability under the ADA. (Response to OSC's (citing Augustine v. United States , 704 F.2d 1074 (9th Cir. 1983), and Thornhill Publ'g Co. v. Gen. Tel. & Elec. Corp. , 594 F.2d 730 (9th Cir. 1979) ).) The Court questioned Plaintiff's interpretation of those cases as well, especially in light of the Ninth Circuit's more recent decision holding that a district court has the "power and duty to raise the adequately of [an ADA plaintiff's] standing sua sponte." D'Lil , 538 F.3d at 1035.

As a final example, Plaintiff requested that the Court hold evidentiary hearings to determine Plaintiff's legitimate intent to return to the hotels. The Court took this suggestion seriously and wondered how it would schedule such evidentiary hearings, how the hearings would be structured, whether defense counsel or the Court would question Plaintiff, and so on. Hoping to receive answers to those questions, among others, the Court scheduled a hearing.

5. Holding the Hearing

But, once again, the Court was left with even more questions than answers after the hearing. Rather than engage in a discussion about standing under the ADA, Plaintiff's counsel, Peter K. Strojnik, responded to the Court's questions with terse, unhelpful responses. For instance, the Court repeatedly asked whether Strojnik could cite any binding case where the plaintiff had standing but had never visited the noncompliant place of accommodation. Strojnik responded in the same way each time the Court posed this question: "It's in the briefs." Strojnik never stated which case he was referring to in the briefs. The most detailed response the Court received from Strojnik was "the case that in which Kalthia cites to a case in which an expert is permitted to establish standing on behalf of." Again, Strojnik didn't name the case. And, as it turns out, both responses were inaccurate. As described later, neither Plaintiff's briefs nor Kalthia cite a single binding case where a plaintiff had standing without ever visiting the place of accommodation.

One of the issues the Court wanted to explore at oral argument is whether these pending cases might be affected by rulings on standing in the case now pending before the United States Supreme Court, Robins v. Spokeo, Inc. , 742 F.3d 409 (9th Cir. 2014)cert. granted , ___ U.S. ____, 135 S.Ct. 1892, 191 L.Ed.2d 762 (2015). Strojnik's response was: "What is Spokeo ?"

Strojnik not only failed to accurately answer the Court's questions, but he also expressed extreme disrespect to the Court throughout the hearing — most notably in his repeated, intentional interruptions of the Court. As another example, the Court asked Strojnik what he thought was the purpose of the statutes involved in the case. Rather than engage the Court, Strojnik said, "Well, I believe the Court can read the statutes as well as I can."

Counsel's unresponsiveness to the Court's questions and disrespectful demeanor indicated that Strojnik wanted the Court to rule against his client. Indeed, at one point Strojnik tried to incite the Court by accusing it of being a "barrier to equality." And despite not knowing the Court's ultimate ruling, Strojnik stated his intention of appealing the Court's ruling to the Ninth Circuit and all the way to the Supreme Court.

Significantly, Strojnik stated that "there is no correct decision today." He also stated "I think right now this issue is ripe for appellate review. The Court can come on one side or the other." The Court told Strojnik that those statements, among others, reflected his overall indifference to how the Court ruled, which could...