Case Name: Rosemary Garcia v. Aspromonte Inns, LLC, et al.

Case No.: 18CV337320

Demurrer to the Complaint

Factual and Procedural Background

Plaintiff Rosemary Garcia (“Garcia”) is mobility impaired and relies upon mobility devices to ambulate. (Complaint, ¶¶1 and 14.) Plaintiff suffered from a “qualified disability” under the Americans with Disabilities Act (“ADA”). (Complaint, ¶14.) As a result of her disability, plaintiff Garcia requires an accessible room to utilize the goods, services and facilities provided by defendant Aspromonte Inns, LLC (“Aspromonte”) who operates the Seaway Inn (“Hotel”) located in Santa Cruz. (Complaint, ¶17.) The Hotel is a place of public accommodation. (Id.) Defendant Aspromonte maintains its reservation service, including but not limited to, a website which provides access to the array of services, including descriptions of its hotel, rooms, and services, the ability to make room reservations, and many other benefits related to these facilities and services. (Id.)

Plaintiff Garcia visited defendant’s website to view the accessible features in the Hotel and guest rooms of the defendant’s Hotel. (Complaint, ¶19.) Plaintiff planned to visit a hotel in the Santa Cruz area on September 22 – 23, 2018. (Complaint, ¶20.) As a result of her disabilities, plaintiff Garcia required information about the features of the accessible rooms and the Hotel to independently make a reservation. The information required by plaintiff Garcia was unavailable so plaintiff Garcia could not make a reservation for an accessible room or suite using the website in the same manner as individuals who do not need accessible rooms. (Complaint, ¶¶20 – 21.) Defendant Aspromonte has no policy to ensure that accessible guest rooms are held for use by individuals with disabilities; accessible guest rooms may be reserved on request; specific accessible guest rooms reserved through its reservation service is held for the reserving customer; or the Hotel provides the statutorily required minimum number of accessible rooms. (Complaint, ¶23.)

On October 30, 2018, plaintiff Garcia filed a complaint against defendant Aspromonte asserting causes of action for:

(1) Violation of the Unruh Civil Rights Act, California Civil Code §51 et seq.
(2) Declaratory Relief

On January 22, 2019, defendant Aspromonte filed the motion now before the court, a demurrer to plaintiff Garcia’s complaint.

I. Defendant Aspromonte’s demurrer to plaintiff Garcia’s complaint is OVERRULED.

The Unruh Civil Rights Act states that “[a]ll persons within the jurisdiction of this state are free and equal and no matter what their… race, color…[or] national origin… are entitled to the full and equal accommodations, advantages, facilities, privileges or services in all business establishments of every kind whatsoever.” (Civ. Code, §51.) A plaintiff may enforce his or her rights under the Unruh Civil Rights Act by bringing an action for damages. (Civ. Code, §52, subd. (a); see also CACI, No. 3020.)

Specifically, Civil Code section 51, subdivision (f) states, “A violation of the right of any individual under the federal Americans with Disabilities Act of 1990 (Public Law 101-336) shall also constitute a violation of this section.” Plaintiff Garcia’s first cause of action expressly alleges, “Defendant’s discriminatory conduct alleged herein includes, inter alia, the violation of the rights of persons with disabilities set forth in Title III of the ADA and therefore also violates the Unruh Act, Cal. Civ. Code § 51(f).” (Complaint, ¶31.)

Plaintiff contends defendant Aspromonte’s reservation system violates 28 C.F.R. § 36.302(e) which states:

a place of lodging shall, with respect to reservations made by any means … (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 reservation 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 needs; (iii) Ensure that accessible guest rooms are held for use by individuals with disabilities until all other guest rooms of that type have been rented and the accessible room requested is the only remaining room of that type; (iv) Reserve, upon request, accessible guest rooms or specific types of guest rooms and ensure that the guest rooms requested are blocked and removed from all reservations systems; and (v) Guarantee that the specific accessible guest room reserved through its reservation service is held for the reserving customer, regardless of whether a specific room is held in response to reservations made by others.

To succeed on a discrimination claim under Title III of the ADA, a plaintiff must show that “(1) he is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodation by the defendant because of his disability.” (Arizona ex rel. Goddard v. Harkins Amusement Enters., Inc., 603 F.3d 666, 670 (9th Cir. 2011).)

In demurring, defendant Aspromonte argues initially that plaintiff Garcia lacks standing to assert a claim under the ADA. As part of establishing a federal court’s subject matter jurisdiction, individuals must establish Article III standing to sue. (Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 2011).) Standing requires the plaintiff to establish three elements: (1) an injury-in fact that is “concrete and particularized” and “actual or imminent,” (2) the injury must be “fairly … trace[able] to the challenged action of the defendant,” and (3) it must be “likely” that a favorable decision will redress the injury. (Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).) In the ADA context, “[o]nce an individual has encountered … alleged ADA violations that deter his patronage of or otherwise interfere with his access to a place of public accommodation, he has already suffered an injury in fact traceable to the defendant’s conduct and capable of being redressed by the courts.” (Chapman, 631 F.3d at 947 (quoting Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1039 (9th Cir. 2008)).)

Only injunctive relief is available under Title III of the ADA. (Luu v. Ramparts, Inc., 926 F. Supp. 2d 1178, 1182 (D. Nev. 2013).) To establish standing for injunctive relief, a plaintiff must also demonstrate, in addition to the above, that there is a “real and immediate threat of future injury by the defendant.” (Sawczyn v. BMO Harris Bank Nat’l Ass’n, 8 F. Supp. 3d 1108, 1111 (D. Minn. 2014) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983)).) The Ninth Circuit has held that there are two ways in which an ADA plaintiff may establish standing to sue for injunctive relief: the plaintiff can either demonstrate “deterrence” or “injury-in-fact coupled with an intent to return to a noncompliant facility.” (Chapman, 631 F.3d at 944.) Standing to sue under the ADA does not require the plaintiff to engage in “futile gestures” of “attempting to gain access” to inaccessible facilities in order to show actual injury. (Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133, 1136-37 (9th Cir. 2002).)

Defendant Aspromonte argues plaintiff has not adequately alleged an injury in fact. “Once a disabled individual has encountered or become aware of alleged ADA violations that deter his patronage of or otherwise interfere with his access to a place of public accommodation, he has already suffered an injury in fact traceable to the defendant’s conduct and capable of being redressed by the courts, and so he possesses standing under Article III….” (Chapman, 631 F.3d at 947.) Aspromonte directs the court’s attention to paragraph 14 of the complaint contending plaintiff has alleged only that accessible rooms were not available, but has not alleged her inability to reserve an accessible room. Aspromonte’s focus is too narrow and ignores the allegations found at paragraphs 20 – 21 where plaintiff Garcia alleges, “The information required by Plaintiff was unavailable so Plaintiff could not make a reservation for an accessible room or suite.” In other words, plaintiff personally encountered an alleged ADA violation and it deterred her patronage. This is a sufficient allegation of injury in fact.

Defendant Aspromonte argues next that defendant’s website does not involve access to a place of public accommodation. “The statute applies to the services of a place of public accommodation, not services in a place of public accommodation. To limit the ADA to discrimination in the provision of services occurring on the premises of a public accommodation would contradict the plain language of the statute.” (Robles v. Domino’s Pizza, LLC (9th Cir. 2019) 913 F.3d 898, 905.) In Robles, the court held that the ADA requirements applied to a website of a pizza franchise even though customers access the website away from the physical restaurant. The Robles court explained, “The alleged inaccessibility of Domino’s website and app impedes access to the goods and services of its physical pizza franchises—which are places of public accommodation. See 42 U.S.C. § 12181(7)(B) (listing a restaurant as a covered “public accommodation”). Customers use the website and app to locate a nearby Domino’s restaurant and order pizzas for at-home delivery or in-store pickup. This nexus between Domino’s website and app and physical restaurants—which Domino’s does not contest—is critical to our analysis.” (Robles, 913 F.3d at 905.) “Domino’s website and app facilitate access to the goods and services of a place of public accommodation—Domino’s physical restaurants. They are two of the primary (and heavily advertised) means of ordering Domino’s products to be picked up at or delivered from Domino’s restaurants. We agree with the district court in this case—and the many other district courts that have confronted this issue in similar contexts—that the ADA applies to Domino’s website and app, which connect customers to the goods and services of Domino’s physical restaurants.” (Id. at 905–906.) The same can be said here of defendant’s Hotel website which is intended to facilitate access to the goods and services of a place of public accommodation—the Hotel.

Third, Aspromonte implores the court to consider the opinion of the United States Department of Justice. “The Department of Justice (“DOJ”), through the Attorney General, is charged with enforcing Title III. The DOJ is also responsible for promulgating regulations implementing Title III, issuing technical assistance materials, and filing suit to enforce compliance with the ADA and the implementing regulations.” (U.S. v. AMC Entertainment, Inc. (C.D. Cal. 2003) 245 F.Supp.2d 1094, 1100.)

The Department has taken the position that covered entities with inaccessible Web sites may comply with the ADA’s requirement for access by providing an accessible alternative, such as a staffed telephone line, for individuals to access the information, goods, and services of their Web site. See Accessibility of State and Local Government Web sites to People with Disabilities, available at http://www.ada.gov/Web sites2.htm. In order for an entity to meet its legal obligation under the ADA, an entity’s alternative must provide an equal degree of access in terms of hours of operations and range of information, options, and services available.”

(Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations, 75 FR 43460-01.)

Aspromonte invites the court to find no violation of the ADA where there are alternative means of accessing the information sought by plaintiff and suggesting plaintiff did not allege she attempted to employ those alternative means (i.e., telephone). The court does not view the DOJ materials cited by Aspromonte to be of particular assistance here, particularly where there is a more specific regulation in place governing Hotel reservations, i.e., 28 C.F.R. § 36.302(e).

Finally, Aspromonte argues there is no causal connection between an alleged injury and defendant’s conduct. However, as discussed above, “Once a disabled individual has encountered or become aware of alleged ADA violations that deter his patronage of or otherwise interfere with his access to a place of public accommodation, he has already suffered an injury in fact traceable to the defendant’s conduct and capable of being redressed by the courts, and so he possesses standing under Article III….” (Chapman, 631 F.3d at 947.) Also as noted above, the complaint sufficiently alleges plaintiff personally encountered an alleged ADA violation and it deterred her patronage.

There being an actionable violation of the ADA, plaintiff has sufficiently stated a claim for violation of the Unruh Civil Rights Act. To the extent Aspromonte argues plaintiff lacks standing to pursue monetary relief, the argument attacks a form of relief and is not the basis for a demurrer. Accordingly, defendant Aspromonte’s demurrer to the first cause of action in plaintiff Garcia’s complaint on the ground that there is a defect of parties [Code Civ. Proc., §430.10, subd. (d)] and on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for violation of the Unruh Civil Rights Act is OVERRULED.

Defendant Aspromonte demurs to the second cause of action for declaratory relief on the basis that it seeks the same relief sought in the first cause of action and is, therefore, superfluous. Defendant Aspromonte contends a claim for declaratory relief should address prospective rights between the parties rather than redress past wrongs. In opposition, plaintiff contends there is threat of continuing harm and the potential for future relations so declaratory relief remains proper. In Filarsky v. Superior Court (2002) 28 Cal.4th 419, 433, the court wrote, “[t]he mere circumstance that another remedy is available is an insufficient ground for refusing declaratory relief, and doubts regarding the propriety of an action for declaratory relief pursuant to Code of Civil Procedure Section 1060 generally are resolved in favor of granting relief.” Code of Civil Procedure section 1062 makes it clear that declaratory relief is cumulative to other remedies. While the court believes any future rights will be addressed by any injunctive relief obtained in the first cause of action, the court will err on the side of caution and allow the declaratory relief cause of action to remain at this time. Accordingly, defendant Aspromonte’s demurrer to the second cause of action in plaintiff Garcia’s complaint on the ground that there is a defect of parties [Code Civ. Proc., §430.10, subd. (d)] and on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for declaratory relief and on the ground that the pleading is uncertain [Code Civ. Proc., §430.10, subd. (f)] is OVERRULED.