Brooke v. Superb Hosp., LLC, CASE NO. 1:20-CV-0103 AWI SAB

THERESA BROOKE, Plaintiff v. SUPERB HOSPITALITY, LLC, d/b/a Fairfield Inn & Suites Selma/Kingsburg, Defendants

CASE NO. 1:20-CV-0103 AWI SAB

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

March 29, 2021

ORDER ON MOTIONS FOR SANCTIONS, MOTION TO DISMISS, MOTION FOR PARTIAL SUMMARY JUDGMENT, RULE 56(d) MOTION FOR RELIEF, AND MOTION TO AMEND

(Doc. Nos. 44, 53, 54, 64)

This unusually contentious matter is brought by Plaintiff Theresa Brooke against Defendant Superb Hospitality, LLC d/b/a Fairfield Inn & Suites Selma/Kingsburg ("Superb"). The operative complaint is the First Amended Complaint ("FAC"), which seeks relief under Title II of the Americans with Disabilities Act (42 U.S.C. § 12181 et seq.) ("ADA") and California Civil Code §§ 51, 52 ("Unruh Act"). Currently before the Court are three motions for sanctions (two under Rule 11 and one pursuant to 28 U.S.C. § 1927), a combined Rule 12(b)(1), Rule 12(b)(6), and alternative Rule 56 partial summary judgment motion, a Rule 56(d) motion, and a motion to amend. Briefing on all motions have now been received. This motion disposes of the non-sanctions motions.

FACTUAL BACKGROUND

From the FAC, Brooke resides in Arizona but also has an office for purposes of ADA testing in California. At all relevant times, Brooke has been legally disabled and confined to a wheel chair due to a loss of a leg. Because Brooke ambulates by use of a wheelchair, she can only rent a mobility accessible hotel room. Brooke and her husband are avid travelers to California. Brooke travels to California for leisure, to participate in judicial proceedings, and to conduct site inspections to determine if various hotels comply with disability access laws and settlements. Brooke is an ADA serial tester who intends to check Superb for compliance in the near future.

At an unknown time, Brooke visited Superb's website to rent rooms and check compliance with disability access rules. Brooke wanted to rent a one-bedroom suite, which is the sole suite offered at Superb's hotel ("the Hotel") and offers more living space, better views, and more luxurious amenities than Superb's standard rooms. The sole accessible rooms offered at the Hotel are standard rooms, which are not comparable to the suites offered at the Hotel. In other words, Superb does not provide the same room-type choices to disabled Americans as it does for able-bodied persons. Section 224.5 of the 2010 Standards of Accessible Design ("SAD") requires that hotels "shall provide choices of guest rooms, number of beds, and other amenities comparable to the choices provided to other guests." Had Superb provided comparable choices as those offered to able-bodied persons, Brooke would have booked a room. However, because Brooke knew that she could not obtain a suite, she was deterred from visiting Superb and will not visit the Hotel until it makes a suite accessible.

Brooke alleges that prior to filing this lawsuit, she took a screenshots of "Superb's website." The webpage for the One Bedroom Suit indicates that it has no accessible features. Further, "Superb's website" indicated that the Hotel had six room-types available, only one of which was a suite. However, during the pendency of this case, Defendant "hid" the One Bedroom Suite from the "Rooms" tab of the website, reduced the number of room-types available from six to five, and changed the names of the room types. Moreover, despite removing the One Bedroom Suite from the "Rooms" tab, elsewhere on the website the Hotel is described as having 3 floors, 64 rooms, and 22 suites. Brooke alleges that using the Wayback Machine and other IT methods demonstrates that "Superb's website" was altered. According to the Wayback Machine, Defendant used to have six room-types, including the One Bedroom Suite.¹

Finally, Brooke alleges that other barriers exist at the Hotel. For example, the Hotel does not have an access aisle at the lobby loading zone. However, Brook alleges that she will bring that action when she has an opportunity to inspect the premises.

I. DEFENDANT'S RULE 12(b)(1) MOTION² Defendant's Arguments

Superb argues inter alia that, per declarations filed in February, April , and May 2020, this case is moot. Declarations from the general manager of the Hotel and a Vice President of Superb confirm that a One Bedroom Suite is no longer offered or available at the Hotel to anyone. The Hotel only had a single One Bedroom Suite on the property (Room 335), but that room was modified as of February 17, 2020, through the removal of a door so that it is now a King Studio room. The only difference between a One Bedroom Suite and an Accessible King Studio room is a door and partial wall between the bedroom and living area. An Accessible King Studio room has been available at the hotel since 2012. The Accessible King Studio is larger than the One Bedroom Suite, has all of the same features and amenities, and has a comparable view (as it is located just seven doors down from Room 335). There are also two other premium rooms that are accessible, an Accessible Queen Studio and an Accessible Spa King. Thus, contrary to the allegations, there are and were comparable rooms to the One Bedroom Suite that were available to Brooke, which complies with SAD § 224.5. With the elimination of the One Bedroom Suite through a physical alteration, the absence of an actual violation of the SAD, and given the ease with which Brooke could check whether a One Bedroom Suite will be offered for rent through a computer or smart phone search and a resulting screen shot, there is no reasonable likelihood that the Room 335 King Studio will be altered and once again be offered as an inaccessible One Bedroom Suite. Finally, Superb argues that its sworn declarations demonstrate that it does not own or control any websites. All information found on the websites cited are from third parties.

Plaintiff's Opposition

Brooke argues, inter alia, that at this stage of the litigation, it is inappropriate to consider or address extrinsic evidence for the purpose of ruling on the pending motions. With respect to whether Superb still has One Bedroom Suites, that is a statutory standing requirement that is intertwined with the merits of the case. In such a situation, Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) dictates that a Rule 12(b)(6) analysis must be made instead of a Rule 12(b)(1) analysis. Under Rule 12(b)(6), consideration of extrinsic evidence is inappropriate.

Brooke also argues that Superb's motion focuses on the alleged remediation of one suite. However, "Superb's website" lists 22 suites at the Hotel, and the FAC alleges that there are a total of 22 inaccessible suites. The motion does not address any actions towards the remaining 21 suites.

Finally, Brooke argues that Superb fails to meet its heavy burden of demonstrating mootness through voluntary cessation. Superb offers no proof that its "unbelievable" changes to the One Bedroom Suite is permanent. There is no proof that the inaccessible room will not be renamed after litigation is over or that Superb will not change the website to again advertise a One Bedroom Suite. There is also no physical proof that shows the change to the Suite. There is also no proof that the website, which previously listed 22 inaccessible suites but is now claimed to be a mistake, cannot be easily changed back after this case is over. Further, it should be noted that alleged sole suite was converted on February 18, 2020, which is the same date that the Clerk made an entry of default and the same date that Superb filed its motion to dismiss. Therefore, Defendant has not met its burden.

Relevant Declarations

1. Ritu Portugal

Portugal is a Vice President of Superb. See Doc. No. 8-16 at ¶ 2. In relevant part, Portugal declares: (1) the Hotel was built in 2010; (2) Superb does not own, lease, or control any website; (3) Superb does not have a website or similar internet presence whereby one could learn about the Hotel or book a room; (3) Superb has no right to change any website or internet presence through which the public could learn about the Hotel or rent rooms; (4) as a Fairfield Inn location,rooms at the Hotel may be rented through the franchisor's website; (5) Superb is limited to asking the owners or operators of travel websites and the franchisor's website to make changes; (6) requested changes must be approved by the franchisor; (7) the allegation that the sole accessible rooms at the Hotel are standard rooms is untrue as there are Accessible King Studio, Accessible Queen Studio, and Accessible King Spa rooms available for rent; (8) compared to the One Bedroom Suite, the Accessible King Studio is seven square feet larger, has substantially the same views (being only 7 doors apart) and amenities, and does not have a full wall between the bedroom and sitting area in order to provide greater clearance and accessibility; (9) an Accessible King Studio has been available since 2010; (10) with the removal of the door, the One Bedroom Suite (Room 335) will be offered as a King Studio because it materially meets the requirements of that room type and no longer meets the requirements of a One Bedroom Suite; (11) the sole One Bedroom Suite in the hotel was Room 335; (12) because Room 335 has now been converted to a King Studio, Superb will not rent Room 335, or any other room, as a One Bedroom Suite or any similar designation; and (13) the one exception might be if a Certified Access Specialist confirms that an accessible room of a type which is presently not offered for rental meets all applicable accessibility requirements, Superb might consider offering rooms of that type to the public, but presently has no plans to do so. See Doc. No. 8-16.

2. Abel Perez a.k.a. Avel Fuentez

Perez is the general manager of the Hotel. See Doc. No. 8-7 at ¶ 2. In relevant part, Perez declares that: (1) the allegation that the sole accessible rooms offered are standard rooms is false, as there...