Johnson v. Ona
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 11/7/11 RECOMMENDING that defendant's motion to dismiss be denied. Referred to Judge Kimberly J. Muelller; Objections due within 14 days after being served with these findings and recommendations. (Becknal, R)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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SCOTT N. JOHNSON,
Plaintiff,
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No. 2:11-cv-0021-KJM-JFM
vs.
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GODWIN ONA,
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Defendant.
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FINDINGS & RECOMMENDATIONS
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Pending before the court is defendant’s motion to dismiss. Plaintiff opposes the
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motion. Upon review of the motion and the documents in support and opposition, and good
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cause appearing therefor, THE COURT MAKES THE FOLLOWING FINDINGS:
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PROCEDURAL BACKGROUND
Defendant is the owner of Royal Gardens Apartments located at 3040 Howe
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Avenue, Sacramento, California. Plaintiff initiated this action on January 3, 2011, alleging that,
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as a person with a disability, he is unable to access the leasing office of the Royal Gardens
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Apartments in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et
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seq., and the California Unruh Civil Rights Act.
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Following three stipulations for extension of time, defendant filed an answer and
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counterclaim on May 16, 2011. On June 19, 2011, plaintiff filed a notice of settlement. On
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August 16, 2011, defendant filed the instant motion to dismiss. On August 18, 2011, plaintiff
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filed a request to withdraw the notice of settlement and, on August 19, 2011, filed an opposition
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to the motion to dismiss. Finally, on August 27, 2011, plaintiff filed an answer to the
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counterclaim.
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STANDARD FOR A MOTION TO DISMISS
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The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal
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sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir.
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1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of
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sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901
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F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege “enough facts to state a claim to
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relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct.
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1955, 1974 (2007). Thus, a defendant’s Rule 12(b)(6) motion challenges the court’s ability to
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grant any relief on the plaintiff’s claims, even if the plaintiff’s allegations are true.
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In determining whether a complaint states a claim on which relief may be granted,
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the court accepts as true the allegations in the complaint and construes the allegations in the light
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most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v.
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United States, 915 F.2d 1242, 1245 (9th Cir. 1989).
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The court is permitted to consider material properly submitted as part of the
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complaint, documents not physically attached to the complaint if their authenticity is not
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contested and the complaint necessarily relies on them, and matters of public record. Lee v. City
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of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). Matters of public record include
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pleadings and other papers filed with a court. Mack v. South Bay Beer Distributors, 798 F.2d
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1279, 1282 (9th Cir. 1986). The court need not accept as true conclusory allegations,
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unreasonable inferences, or unwarranted deductions of fact. Western Mining Council v. Watt,
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643 F.2d 618, 624 (9th Cir. 1981).
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DISCUSSION
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Defendant seeks dismissal of the complaint on the grounds that it lacks merit and
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is “wast[ing] the tax payers money.”
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A.
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Ground One
Title III of the ADA provides that “[n]o individual shall be discriminated against
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on the basis of disability in the full and equal enjoyment of the goods, services, facilities,
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privileges, advantages, or accommodations of any place of public accommodation by any person
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who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C.
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§ 12182(a). Discrimination includes “a failure to remove architectural barriers ... in existing
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facilities ... where such removal is readily achievable .” Id. § 12182(b)(2)(A)(iv). Under the
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ADA, the term readily achievable means “easily accomplishable and able to be carried out
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without much difficulty or expense.” 42 U.S.C. § 12181(9).
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“To prevail on a Title III discrimination claim, the plaintiff must show that (1)
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[he] is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns,
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leases, or operates a place of public accommodation; and (3) the plaintiff was denied public
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accommodations by the defendant because of her disability.” Molski v. M.J. Cable, Inc., 481
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F.3d 724, 730 (9th Cir. 2007). Further, “[t]o succeed on a ADA claim of discrimination on
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account of one's disability due to an architectural barrier, the plaintiff must also prove that: (1)
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the existing facility at the defendant's place of business presents an architectural barrier
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prohibited under the ADA, and (2) the removal of the barrier is readily achievable.” Parr v. L &
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L Drive-Inn Rest., 96 F. Supp. 2d 1065, 1085 (D. Haw. 2000).
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Here, plaintiff alleges (1) that he is disabled, Compl. ¶ 1; (2) that the leasing
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office within the Royal Gardens Apartments is a place of public accommodation, id. ¶ 2; (3) that
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plaintiff was denied access to the leasing office because of plaintiff's disability, id. ¶ 4; and (4)
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that defendant’s business has architectural barriers (lack of disabled parking space, inaccessible
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route, inaccessible entrance, lack of accessibility signage and striping), id. Additionally, plaintiff
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alleges that these architectural barriers are readily removable. Id. ¶ 4. His complaint also
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specifically states that he seeks injunctive relief to remove all barriers to access which are readily
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achievable” Id. ¶ 4. Thus, the court finds that plaintiff’s first cause of action states a claim
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under the ADA.
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Furthermore, the Unruh Civil Rights Act provides: “All persons within the
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jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion,
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ancestry, national origin, disability, medical condition, marital status, or sexual orientation are
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entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all
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business establishments of every kind whatsoever.” Cal. Civ. Code § 51(b). To prevail on his
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disability discrimination claim under the Unruh Civil Rights Act, plaintiff must establish that (1)
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he was denied the full and equal accommodations, advantages, facilities, privileges, or services
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in a business establishment; (2) his disability was a motivating factor for this denial; (3)
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defendants denied plaintiff the full and equal accommodations, advantages, facilities, privileges,
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or services; and (4) defendants' wrongful conduct caused plaintiff to suffer injury, damage, loss
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or harm. California Civil Jury Instructions (BAJI), No. 7.92 (Spring 2009). A plaintiff who
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establishes a violation of the ADA need not prove intentional discrimination under the Unruh
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Act. See Munson v. Del Taco, Inc., 46 Cal.4th 661 (Cal. 2009) (interpreting Cal. Civ. Code
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§ 51(f), which provides “A violation of the right of any individual under the Americans with
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Disabilities Act of 1990 (Public Law 101-336) shall also constitute a violation of this section”).
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Based on the foregoing, the court also finds that plaintiff states a claim under the Unruh Act.
Therefore, the court recommends that defendant’s motion to dismiss for lack of
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merit be denied.
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B.
Ground Two
Defendant also seeks dismissal of the complaint as a waste of taxpayers’ money.
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This is not a proper ground for dismissal. To the extent defendant seeks dismissal on a theory of
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frivolity, the court does not find plaintiff’s claims to be frivolous for the reasons stated supra.
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Thus, the motion to dismiss should be denied on this ground.
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In accordance with the above, IT IS HEREBY RECOMMENDED that
defendant’s motion to dismiss be denied.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen
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days after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge's Findings and Recommendations.” Failure to file objections
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within the specified time may waive the right to appeal the District Court’s order. Turner v.
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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: November 7, 2011.
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