United States District Court, E.D. California
THERESA BROOKE, a married woman dealing with her sole and separate claim, Plaintiff,
CAPITOL REGENCY LLC, a California Limited Liability Company dba Hyatt Regency Sacramento, Defendants.
ORDER GRANTING DEFENDANT'S MOTION TO
MENDEZ UNITED STATES DBTRICT JUDGE.
matter involves a self-described “tester” who
calls various hotels to inquire whether they provide ADA
compliant pool access for disabled persons like herself.
Capitol Regency LLC (“Defendant”), operator of
one such hotel, moves this Court to dismiss the action for
lack of subject matter jurisdiction. For the reasons set forth
below, the Court grants Defendant's motion, without
following facts are taken as true for the purposes of this
Theresa Brooke is a disabled woman confined to a wheelchair.
Compl. at ¶ 4. She resides in Pinal County, Arizona.
Id. at ¶ 1. On some unspecified date, Plaintiff
contacted Defendant's hotel “for purposes of
booking a room for personal and business affairs in
Sacramento.” Id. at ¶ 24. Plaintiff asked
whether the hotel pool or Jacuzzi had a pool lift or means of
access for disabled persons. Id. Defendant's
representative informed her that the Jacuzzi did not have
such means of access. Id. Plaintiff's
agent-again, on some unspecified date-“independently
verified that the Jacuzzi does not have a lift in position
for use or other access, but that a lift was stored in the
corner of the pool area[.]” Id. at ¶ 25.
The agent reported its findings to Plaintiff and provided
Plaintiff with photographs showing “the lack of
accessibility.” Id. “But for these
barriers, Plaintiff would lodge with Defendant in the near
future.” Id. “If and when defendant
removes these barriers, Plaintiff will lodge with
Defendant's hotel since she has several upcoming planned
visits to Sacramento.” Id.; see also
¶¶ 29, 30, 34, & 38.
filed this action against Defendant for discrimination under
the Americans with Disabilities Act (“ADA”) due
to Defendant's alleged failure to remove architectural
barriers to make its lodging services fully accessible to
disabled individuals. Id. at ¶¶ 41-49.
Plaintiff seeks declaratory and injunctive relief on that
claim, as well as attorney's fees and costs. Id.
at ¶ 49. Plaintiff's second and third causes of
action arise under state law, the California Unruh Civil
Rights Act and the California Disabled Persons Act,
respectively. Id. at ¶¶ 50-61.
moves to dismiss the complaint under Federal Rule of Civil
Procedure 12(b)(1) for lack of standing under Article III.
MTD at 4-5; see Maya v. Centex Corp., 658 F.3d 1060,
1067 (9th Cir. 2011) (“[L]ack of Article III standing
requires dismissal for lack of subject matter
disabled person claiming access discrimination in violation
of the ADA must establish Article III standing in order to
maintain their lawsuit. Chapman v. Pier 1 Imports,
Inc., 631 F.3d 939, 946 (9th Cir. 2011). “Because
the remedy available to a private litigant under the ADA is
an injunction, Plaintiff has the burden of proving both an
injury in fact and the real threat of future injury.”
Johnson v. Overlook at Blue Ravine, LLC, No.
2:10-cv-02387-JAM-DAD, 2012 WL 2993890, at *2 (E.D. Cal. Jul.
20, 2012) (citing Chapman). An injury in fact must
be concrete and particularized and actual or imminent, not
conjectural or hypothetical. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). The injury in fact
element is met when a disabled plaintiff has encountered a
barrier violating the ADA. Chapman, 631 F.3d at 947
(citing Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1044
(9th Cir. 2008)). The ADA plaintiff can show a likelihood of
future injury either “when he [or she] intends to
return to a noncompliant accommodation and is therefore
likely to reencounter a discriminatory barrier” or
“when discriminatory architectural barriers deter him
[or her] from returning to a noncompliant
accommodation.” Chapman, 631 F.3d at 950.
argues that her “call and confirm method” of
ascertaining ADA violations provides her with “actual
notice” of the deficiencies, which “triggers the
deterrent effect doctrine and therefore confers
standing.” Opp. at 1-2. Plaintiff contends this
question is open in the Ninth Circuit and there is a split
between the districts on the answer. Id. at 2, 5.
Court finds that the weight of authority supports dismissal
of Plaintiff's ADA claim. Plaintiff must suffer an injury
in fact to invoke Article III standing. However, Plaintiff
does not allege that she visited Defendant's hotel or
encountered a barrier there. Without such allegations,
“Plaintiff's injury is not ‘particularized
and concrete' . . . [or] ‘actual or
imminent.'” Brooke v. Peterson, 185
F.Supp.3d 1203, 1210 (C.D. Cal. 2016) (“Binding
precedent supports that under any theory of standing,
including the deterrent effect doctrine, an ADA plaintiff
must have previously visited a noncompliant place of
accommodation to have an injury-in-fact under Article
III.”) . Although some Ninth Circuit dicta seems to
leave the door open for relief, see Peterson, 185
F.Supp.3d at 1207-10 (discussing the “deterrent
effect” ADA cases in detail), the Ninth Circuit has not
held that plaintiffs have standing in such circumstances. To
the contrary, in each of the Circuit's principal
“deterrent effect” cases, the
“plaintiffs' actual knowledge of at least one of
the non-compliant barriers came through their own percipient,
personal encounters with the barriers and were not simply
being reported by an independent agent.” Brooke v.
Pacific Gateway Ltd., No. 3:17-cv-0796-CAB-WVG, slip op.
at 2 (S.D. Cal. May 9, 2017); see Pickern v. Holiday
Quality Foods Inc., 293 F.3d 1133 (9th Cir. 2002);
Doran, 524 F.3d 1034; Chapman, 631 F.3d
939. The fact that the Ninth Circuit permits ADA plaintiffs
to rely on expert evidence to challenge barriers the
plaintiff did not personally encounter does not affect the
analysis, Doran, 524 F.3d at 1047, as this allowance
only arises where standing is already established.
appears that every district court in California to address
this question has concluded Plaintiff lacks standing. See
Brooke v. Peterson, 185 F.Supp.3d at 1207-10, 1213
(dismissing four related complaints for failure to allege an
injury in fact); Brooke v. Pacific Gateway Ltd., No.
3:17-cv-0796-CAB-WVG (S.D. Cal. May 9, 2017) (“In sum,
the Court finds Plaintiff['s] reliance on a telephone
call and report of an independent agent insufficient to
confer standing.”); Brooke v. Newport Hotel Holding
LLC, No. 8:16-cv-00426-CJC-DFM (C.D. Cal. Apr. 29, 2016)
(“[T]he Court concludes for its purposes that absent
extraordinary circumstances, an ADA plaintiff should have
firsthand knowledge of the presence of at least one barrier
in an establishment before acquiring standing to sue to
remove that barrier or others. This standard is consistent
with the Ninth Circuit's guidance in Pickern and
alleviates some of the obvious problems with ADA plaintiffs
suing a multitude of establishments from afar.”);
Brooke v. Ayres-Laguna Woods, No. 16-cv-00347-CJC-
KES, 2016 WL 1714880 (C.D. Cal. Apr. 12, 2016) (dismissing
complaint for failure to allege injury in fact in analogous
circumstances); Brooke v. Perry Family Trust, No.
2:16-cv-04648-DMG-AJW (C.D. Cal. Oct. 3, 2016) (same);
Brooke v. Everest Hotel, Inc., No.
5:16-cv-01378-DMG-PJW (C.D. Cal. Oct. 31, 2016) (same);
see also Order to Plaintiff to Show Cause Why the
Action Should Not Be Dismissed for Lack of Standing,
Brooke v. H & K P'ship, No.
1:16-cv-1406-AWI-JLT (E.D Cal. Oct. 26, 2016) (order issued
for 28 related cases) (“Thus, because Plaintiff did not
stay at- or even visit-the hotels and did not personally
encounter the alleged barriers, it appears Plaintiff lacks
standing under Article III to pursue her claims for
violations of the ADA.”). The Court also finds that
Judge Curiel's dismissal order in Brooke v. Kalthia
Grp. Hotels supports dismissal. No. 15-cv-01873-GPC-KSC,
2015 WL 7302736 (S.D. Cal. Nov. 18, 2015). Contrary to
Plaintiff's argument, only dictum from that decision
lends credence to Plaintiff's position. Judge Curiel
ultimately dismissed Plaintiff's complaint for lack of