Johnson v. California Welding Supply, Inc. et al
Filing
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ORDER denying 8 Motion to Dismiss signed by Judge William B. Shubb on 10/27/11. (Kaminski, H)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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----oo0oo---SCOTT JOHNSON,
NO. CIV. 2:11-01669 WBS GGH
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Plaintiff,
v.
ORDER RE: MOTION TO DISMISS
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CALIFORNIA WELDING SUPPLY, INC.,
individually and d/b/a
CALIFORNIA WELDING SUPPLY
COMPANY; RAYMOND INVESTMENT
CORP., a California corporation,
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Defendants.
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/
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----oo0oo----
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Plaintiff Scott Johnson brought this action alleging
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failure by defendants to remove access barriers to their welding
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supply store and seeking relief under the Americans with
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Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101 et seq., and
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California’s Unruh Civil Rights Act (“Unruh Act”), Cal. Civ. Code
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§§ 51, 52.
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pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure
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on the grounds that the court no longer has subject matter
Defendants now move to dismiss plaintiff’s Complaint
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jurisdiction over plaintiff’s claims.
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I.
Factual and Procedural Background
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Plaintiff is a quadriplegic and is thus a “person with
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a disability” and a “physically handicapped person” according to
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the ADA.
(Compl. ¶ 1; 42 U.S.C. § 12102(2)(A); 28 C.F.R. §
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36.104.)
As a result of his disability, plaintiff has
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substantial limitations on major life activities, including
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standing, breathing, and reaching.
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with these difficulties, plaintiff requires the use of a service
(Compl. ¶ 1.)
To function
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animal, electric wheelchair, and a full-size van with hand-
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controls and a wheelchair lift.
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(Id.)
Twice in the past year, plaintiff claims he has visited
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California Welding Supply Company (“California Welding”), a
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welding supply and retail store.
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visits, one of which occurred on or about April 3, 2011,
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plaintiff alleges that he encountered multiple barriers that made
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it difficult for him to make full and equal use of the premises.
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(Id. ¶ 4.)
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disability, the entrance door, pathways through the store, the
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service counter, signage, and striping caused him to experience
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difficulty, discomfort, and embarrassment.
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(Id. ¶¶ 2, 4.)
During these
Specifically, plaintiff claims that because of his
(Id.)
Plaintiff also claims that the customer parking and
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customer restroom he and his companion used during his April 3,
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2011, visit were out of compliance with applicable disability
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laws.
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provided customer restrooms or customer parking.
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¶¶ 6,7.)
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(Id.)
Defendants contend that they do not and have never
(Garcia Decl.
As a result of these barriers, plaintiff further claims
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that he has been deterred from making two additional visits in
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the past year.
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(Compl. ¶ 4.)
According to the plaintiff, he mailed a letter to
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defendants on December 5, 2010, informing them that their store
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was inaccessible to him and asking that they bring it into
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conformity with applicable disability laws.
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Defendants claim that they never received the letter as the
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address to which the letter was mailed was no longer a valid
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address.
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(Id. ¶ 4, Ex. C.)
(Mem. of P. & A. in Supp. of Defs.’ Mot. to Dismiss at
3.)
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Plaintiff filed this Complaint on June 20, 2011.
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(Docket No. 1.)
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not yet been served, allege that they were contacted by an
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attorney who informed them that they were named as defendants in
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a complaint alleging ADA violations.
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of Defs.’ Mot. to Dismiss at 3.)
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contacted a disability accessability specialist and asked him to
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perform a survey of California Welding.
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The initial survey identified several areas in which the premises
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were not in compliance with the ADA or the California Building
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Code.
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4; Simms Decl. Ex. A.)
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they do not provide public-use parking or restrooms, the
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specialist found that no changes were needed with respect to
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parking or restroom facilities.
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Some time that same month, defendants, who had
(Mem. of P. & A. in Supp.
In response, defendants
(Id.; Garcia Decl. ¶ 8)
(Mem. of P. & A. in Supp. of Defs.’ Mot. to Dismiss at 3Relying upon defendants’ assertion that
(Simms Decl. ¶¶ 5, 9.)
According to defendants, all of the access barriers
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identified in the specialist’s report were removed by July 18,
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2011.
(Mem. of P. & A. in Supp. of Defs.’ Mot. to Dismiss at 4.)
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The accessability specialist made a follow-up visit to California
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Welding on July 20, 2011, and reported that as of that date the
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premises were in compliance with the ADA and the California
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Building Code.
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disputes defendants’ claim that they are now in substantial
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compliance with the ADA and the California Business Code on
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several grounds.
(Id.; Simms Decl. ¶ 10, Ex. A.)
Plaintiff
(Pl’s Opp. to Mot. to Dismiss ¶¶ 2-4.)
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First, the specialist’s report found that the
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horizontal pull handle on the outside of the entrance door could
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be opened without “tight grasping or pinching, or twisting of the
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wrist” and was therefore in compliance.
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Plaintiff, however, claims that the handle was difficult for him
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to use because of his limited hand grasping ability and is thus a
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barrier to access.
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Decl. ¶ 9.)
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(Simms Decl. ¶ 6.)
(Pl.’s Opp. to Mot. to Dismiss ¶ 4; Johnson
Second, plaintiff takes issue with the specialist’s
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reliance on defendants’ assertion that they do not provide public
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parking or public restrooms.
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Welding does provide such facilities.
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this position, plaintiff has filed a declaration stating that
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when he visited the premises on April 3, 2011, he was permitted
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to park in a parking lot outside of the store and that when his
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companion asked if there was a customer-use restroom, she was
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directed to a restroom inside the store.
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Kem Decl. ¶¶ 2, 4.)
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plaintiff claims to have parked is a loading dock and point to
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the “No Public Restrooms” sign on the store front’s window.
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(Mem. of P. & A. in Supp. of Defs’ Mot. to Dismiss at 4-5; Ambriz
Plaintiff contends that California
(Id. ¶ 4.)
In support of
(Johnson Decl. ¶¶ 4, 7;
Defendants respond that the area in which
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Decl. Ex. B.)
At oral argument, the parties also disagreed as to
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whether the bathroom in question is a unisex or women-only
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facility.
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II.
Legal Standard
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Rule 12(h)(3) of the Federal Rules of Civil Procedure
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provides that “[i]f the court determines at any time that it
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lacks subject-matter jurisdiction, the court must dismiss the
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action.”
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Rule 12(h)(3) motion and a Rule 12(b)(1) motion is simply that
Fed. R. Civ. P. 12(h)(3).
“The distinction between a
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the former may be asserted at any time and need not be responsive
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to any pleading of the other party.”
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M.V. Hakusan II, 954 F.2d 874, 880, n.3 (3d Cir. 1992); see also
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Kairy v. SuperShuttle Int’l, Inc., 721 F. Supp. 2d 884, 885 (N.D.
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Cal. 2009) (applying a single standard to a motion to dismiss
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pursuant to Rules 12(b)(1) and 12(h)(3)).
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Berkshire Fashions, Inc. v.
Under Federal Rule of Civil Procedure 12(b)(1), a
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complaint must be dismissed once it is determined that a court
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lacks subject matter jurisdiction to adjudicate the claims.
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R. Civ. P. 12(b)(1).
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until the party asserting jurisdiction proves otherwise, and,
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once subject matter jurisdiction has been challenged, the burden
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of proof is placed on the party asserting that jurisdiction
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exists.
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376 (1994);
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(holding that “the party seeking to invoke the court’s
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jurisdiction bears the burden of establishing that jurisdiction
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exists”).
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Fed.
The court presumes a lack of jurisdiction
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,
Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986)
Ordinarily, when a Rule 12(b)(1) motion is ruled upon,
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“no presumptive truthfulness attaches to plaintiff’s allegations,
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and the existence of disputed material facts will not preclude
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the trial court from evaluating for itself the merits of
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jurisdictional claims.”
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1074, 1077 (9th Cir. 1983) (quoting Thornhill Publ’g Co. v. Gen.
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Tel. Corp., 594 F.2d 730, 733 (9th Cir. 1979)).
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free to “review any evidence, such as affidavits and testimony,
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to resolve factual disputes concerning the existence of
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jurisdiction.”
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Augustine v. United States, 704 F.2d
The court is
McCarthy v. United States, 850 F.2d 558, 560 (9th
Cir. 1988).
“[W]here a statute provides the basis for both the
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subject matter jurisdiction of the federal court and the
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plaintiff’s substantive claim for relief,” however, the “question
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of jurisdiction and the merits of an action are intertwined.”
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Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039–40 (9th Cir.
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2004) (quoting Timberland Lumber Co. v. Bank of Am., 549 F.2d
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597, 602 (9th Cir. 1976)).
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“assumes the truth of the allegations in a complaint . . . unless
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controverted by undisputed facts in the record.”
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Advancement of Minorities with Disabilities v. Brick Oven Rest.,
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406 F. Supp. 2d 1120, 1125 (S.D. Cal. 2005) [hereinafter “Brick
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Oven”] (citing Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th
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Cir. 1987)).
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court “must apply the summary judgment standard in deciding the
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motion to dismiss,”
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16822, 1993 WL 173724, at *1 (9th Cir. May 24, 1993), and may not
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resolve any genuinely disputed material facts.
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F.3d at 1309 (explaining that because jurisdictional and
In such circumstances, the court
Org. for
When jurisdiction is intertwined with merits, a
Miller v. Lifestyle Creations, Inc., No. 90-
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Safe Air, 373
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substantive issues were intertwined, the district court should
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have treated the motion to dismiss for lack of jurisdiction as a
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motion for summary judgment).
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Plaintiff’s substantive claims and this court’s
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jurisdiction are both premised upon the ADA, and so jurisdiction
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and substance are intertwined.
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at 1126.
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standard to defendants’ motion to dismiss for lack of
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jurisdiction.
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III. Analysis
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See Brick Oven, 406 F. Supp. 2d
The court will therefore apply the summary judgment
Under the ADA, plaintiffs may only seek injunctive
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relief and attorney’s fees.
See 42 U.S.C. § 12188(a)(1); Newman
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v. Piggie Park Enters., Inc., 390 U.S. 400, 401-02 (1968).
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a defendant has remedied all ADA violations complained of by a
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plaintiff, the plaintiff’s claims become moot and he or she loses
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standing, meaning the court no longer has subject matter
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jurisdiction over the ADA claims.
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Supp. 2d 1126, 1130-31 (C.D. Cal. 2005) (citing cases).1
Once
Grove v. De La Cruz, 407 F.
“A
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Relying on Chapman, plaintiff also claims that “he has
standing to seek injunctive relief as to all mobility related
architectural barriers whether or not they have been identified
in the complaint or whether known to the Plaintiff at this time.”
(Pl.’s Opp. to Mot. to Dismiss ¶ 1.) According to plaintiff,
under Chapman, he has standing because an unidentified expert,
who it does not appear has yet visited the California Welding
premises, “may identify additional architectural barriers which
relate to the Plaintiff’s mobility disability.” (Id.)
While it is true that the court in Chapman held that
plaintiffs may have standing to bring ADA claims on the basis of
barriers that they discover after their initial claim is filed,
Chapman, 631 F.3d at 953, plaintiff cannot use hypothetical
barriers that a hypothetical expert might find if he inspected
the premises at some point in the future to show a concrete,
particularized, and actual injury as required to establish
standing, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992). Chapman did not relieve plaintiffs of the burden of
“show[ing] at each stage of the proceedings” that they suffer
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defendant claiming that its voluntary compliance moots a case
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bears a formidable burden.”
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Laidlaw Envtl. Services, 528 U.S. 167, 170 (2000).
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Friends of the Earth, Inc. v.
Defendants rely upon their accessibility specialist’s
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report to show that their facility is now compliant with all
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applicable disability laws.
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their facility is now ADA compliant, plaintiff can no longer
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obtain injunctive relief and has therefore lost his standing to
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bring his ADA claims.
They further contend that because
However, the accessibility specialist’s
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finding is based in part on defendants’ claim that they do not
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provide public parking or public-use restrooms and therefore do
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not need to make any changes to those aspects of their facility,
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a claim which plaintiff disputes.
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Plaintiff presents evidence that during his April 3,
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2011, his companion was allowed to use the unisex restroom the
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defendants claim is not available for public use and is a women-
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only restroom.
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creates access barriers related to his disability that prevent
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him from making full and equal use of the premises.
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divergent allegations create a genuine dispute as to a material
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fact.
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outside the entrance to California Welding is a loading dock
Further, he claims that the restroom facility
The parties’
Similarly, although defendants claim that the paved area
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from an injury-in-fact sufficient to support standing or of
satisfying applicable pleading standards. Chapman, 631 F.3d at
953-54 (plaintiff had no standing where he “never allege[d] what
[the] barriers were and how his disability was affected by them
so as to deny him the ‘full and equal’ access that would satisfy
the injury-in-fact requirement”); see also Neely v. St. Paul Fire
& Marine Ins. Co., 584 F.2d 341, 344 (9th Cir. 1978) (“An
opposing party’s mere hope that further evidence may develop
prior to trial is an insufficient basis upon which to justify
denial of a motion for summary judgment.”).
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where customer parking is not and cannot be permitted, plaintiff
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alleges that he was allowed to park in that area during his April
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3, 2011, visit.
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The parties’ disagreements are not limited to questions
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surrounding the parking and restroom facilities.
In addition to
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the dispute over whether the entry doors have door handles that
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are “easy to grasp with one hand,” (Simms Decl. ¶ 6), plaintiff
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disputes defendants’ claim that the lowered service counter they
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now provide offers plaintiff “full and equal access,” (Simms
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Decl. ¶ 7).
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credit card reader at the new counter.
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issues of material fact in this action where the jurisdictional
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and substantive issues are intertwined, the court cannot dismiss
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this action for lack of subject matter jurisdiction.
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Specifically, plaintiff complains of the lack of a
Because of these disputed
IT IS THEREFORE ORDERED that defendants’ motion to
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dismiss be, and the same hereby is, DENIED.
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DATED:
October 27, 2011
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