Johnson v. Tackett et al

Filing 20

ORDER signed by District Judge Kimberly J. Mueller on 7/5/2017 DENYING 14 Motion to Dismiss. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SCOTT JOHNSON,

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Plaintiff,

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No. 2:16-cv-02414-KJM-DB

v.

ORDER

LAURIE ELIZABETH TACKETT, et al.,

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Defendants.

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A disabled plaintiff sues a restaurant based on its allegedly inaccessible parking

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lot. Defendants move to dismiss for lack of subject matter jurisdiction. The court submitted the

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case without a hearing. ECF No. 19. As discussed below, the court DENIES defendants’ motion.

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I.

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PROCEDURAL HISTORY AND FACTUAL ALLEGATIONS
Plaintiff filed the operative complaint on October 10, 2016. Compl., ECF No. 1.

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The complaint alleges defendants violated: (1) the Americans with Disabilities Act of 1990, 42

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U.S.C. § 12101, et seq. (ADA); and (2) the Unruh Civil Rights Act, Cal. Civ. Code sections 51–

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53. See generally Compl.

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The following factual allegations give rise to plaintiff’s claims. Plaintiff is a level

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C-5 quadriplegic who has trouble using his hands and cannot walk. Compl. ¶ 1. He uses a

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wheelchair and has a specially equipped van. Id.
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Defendants Laurie Elizabeth Tackett and Shawn D. Tackett own Burger Barn, a

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restaurant in Pollock Pines, California. Id. ¶¶ 2–16. On several occasions, including in February

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2015, May 2016, June 2016, and July 2016, plaintiff ate at Burger Barn. Id. ¶ 21. When

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attempting to park, plaintiff encountered parking-lot related barriers. Id. ¶ 24. First, the parking

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space for persons with disabilities was 90 inches wide, but the access aisle was just 86 inches

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wide. Id. Second, the parking space’s dividing lines were faded and barely discernable. Id. ¶ 26.

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Plaintiff contends he encountered these barriers at least twice, in February 2015 and May 2016.

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Id. ¶¶ 32, 33. Plaintiff alleges these barriers have caused him difficulty and frustration and will

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deter him from visiting in the future. Id. ¶ 38. 1

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Defendants contend they fixed their parking lot to comply with the ADA and the

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Unruh Act after receiving plaintiff’s complaint. Mot. 2, ECF No. 14-1. Specifically, they

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contend they repaved and restriped the accessible parking space. Id. at 3. After modification,

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defendants moved to dismiss for lack of subject matter jurisdiction. See generally id. Defendants

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specifically contend plaintiff lacks standing and his claims are moot. Id. at 2–5. Plaintiff

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opposed. Opp’n, ECF No. 15.

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Because standing and mootness both pertain to a federal court’s Article III subject-

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matter jurisdiction, they are properly raised in a motion to dismiss under Federal Rule of Civil

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Procedure 12(b)(1). White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000).

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II.

LEGAL STANDARD

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Cases are presumed to fall outside a federal court’s limited jurisdiction until

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proven otherwise. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377–78 (1994).

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Either party may challenge subject matter jurisdiction, or the court can address the matter sua

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sponte. Fed. R. Civ. P. 12(b)(1); Fed. R. Civ. P. 12(h)(3); see also Ruhrgas AG v. Marathon Oil

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Co., 526 U.S. 574, 583–84 (1999). A Rule 12(b)(1) jurisdictional attack may be either facial or

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Plaintiff also suggests defendants’ door hardware posed a violation, and notes in his
opposition the claim has been rendered moot because “plaintiff is satisfied with the newly
installed door hardware.” Opp’n at 13 n. 5. A claim based on noncompliant door hardware does
not appear in the operative complaint, see generally Compl., and so the court does not address it
here.
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factual. White, 227 F.3d at 1242. In a facial attack, the court assumes the complaint’s allegations

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are true and assesses jurisdiction in a light most favorable to plaintiff. See Safe Air for Everyone

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v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).

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By contrast, a factual attack challenges the veracity of plaintiff’s jurisdictional

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facts, or contends a necessary jurisdictional fact is absent. Id. The allegations are not presumed

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to be true and “the district court is not restricted to the face of the pleadings, but may review any

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evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of

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jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). “Once the moving

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party has converted the motion to dismiss into a factual motion by presenting affidavits or other

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evidence properly brought before the court, the party opposing the motion must furnish affidavits

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or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction.”

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Savage v. Glendale Union High Sch., 343 F.3d 1036, 1040 n.2 (9th Cir. 2003).

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Jurisdictional dismissal is “exceptional” and warranted only “‘where the alleged

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claim under the Constitution or federal statutes clearly appears to be immaterial and made solely

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for the purpose of obtaining federal jurisdiction or where such claim is wholly insubstantial and

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frivolous.’” Safe Air for Everyone, 373 F.3d at 1039 (quoting Bell v. Hood, 327 U.S. 678, 682–

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83 (1946)). The Ninth Circuit has held that a “[j]urisdictional finding of genuinely disputed facts

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is inappropriate when ‘the jurisdictional issue and substantive issues are so intertwined that the

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question of jurisdiction is dependent on the resolution of factual issues going to the merits of an

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action.’” Sun Valley Gasoline, Inc. v. Ernst Enters., Inc., 711 F.2d 138, 139 (9th Cir. 1983)

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(quoting Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983)). “Normally, the

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question of jurisdiction and the merits of an action will be considered intertwined where . . . a

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statute provides the basis for both the subject matter jurisdiction of the federal court and the

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plaintiff's substantive claim for relief.” Id. (quotation omitted).

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III.

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DISCUSSION
Defendants launch a factual attack on jurisdiction. McCarthy, 850 F.2d 560. To

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support their motion to dismiss based on standing and mootness, defendants contend they

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remedied the barriers giving rise to plaintiff’s claims, relying on their own affidavit testimony.
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Mot. at 2; Tackett Decl. ¶¶ 7–8, ECF No. 14-3. The court discusses the standing and mootness

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arguments in turn.

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A.

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Standing
Standing is an “essential component” of the case or controversy requirement of

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Article III, § 2 of the United States Constitution. Carroll v. Nakatani, 342 F.3d 934, 940 (9th Cir.

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2003). To satisfy Article III’s standing requirements, a plaintiff must show (1) it has suffered an

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“injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural

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or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and

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(3) it is likely, not merely speculative, that a favorable decision would redress the injury. Friends

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of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000). The injury

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must not be conjectural or hypothetical; “the plaintiff must demonstrate a real or immediate threat

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of an irreparable injury.” Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1100 (9th Cir.

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2000). When evaluating these three elements, courts must look at the facts “as they exist at the

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time the complaint was filed.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 568 n.4 (1992).

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Here, the plaintiff has alleged standing. When the complaint was filed, plaintiff

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alleged he previously visited Burger Barn but could not fully enjoy the facility because

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defendants did not adequately maintain a van-accessible parking lot. Compl. ¶¶ 24–26, 28, 32.

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This failure, plaintiff contends, violated the ADA and California’s Unruh Act. Id. ¶¶ 45, 53.

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Plaintiff’s allegations satisfy standing requirements; he adequately alleges injury in fact traceable

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to defendants’ conduct that a favorable decision could resolve. See Doran v. 7-Eleven, Inc., 524

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F.3d 1034, 1041 (9th Cir. 2008) (plaintiff had standing where plaintiff visited a public

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accommodation on prior occasion and is currently deterred from visiting that accommodation by

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accessibility barriers, establishing that plaintiff’s injury is actual or imminent).

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Defendants argue their remedial measures, initiated promptly upon learning of

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plaintiff’s claims, undermine plaintiff’s standing to sue. Mot. at 2. Defendants’ argument is

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misguided because, as noted, courts assess standing at the time the complaint is filed, not after.

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See Lujan, 504 U.S. at 569 n.4; cf. TOC, Inc., 528 U.S. at 175 (“[W]e have held that citizens lack

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statutory standing under § 505(a) to sue for violations that have ceased by the time the complaint

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is filed.”).

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Because plaintiff had standing when he filed the operative complaint he continues

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to have standing now. The question, rather, is whether defendants’ remedial action has mooted

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plaintiff’s claims.

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B.

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Mootness
While defendants concede their parking lot did not previously meet accessibility

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standards, they contend plaintiff’s claim is moot because, after receiving the complaint,

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defendants took “immediate action” to bring their parking lot into compliance. Mot. at 2. In

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opposition, plaintiff contends defendants have not proven this remediation, and even if they have,

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defendants have not shown their failure to comply with the ADA will not recur. Opp’n at 11–12.

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Claims are mooted “when the issues presented are no longer live or the parties lack

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a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969)

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(internal quotation marks omitted). Stated another way, a case is moot when “interim relief or

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events have completely and irrevocably eradicated the effects of the alleged violation” at issue.

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L.A. Cnty. v. Davis, 440 U.S. 625, 631 (1979).

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Courts have long recognized a “voluntary cessation exception” to mootness.

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Rosemere Neighborhood Ass’n v. U.S. EPA, 581 F.3d 1169, 1173 (9th Cir. 2009). Under this

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exception, when a defendant’s voluntary cessation of a challenged activity is the basis for

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mootness, it is the defendant’s burden to show “subsequent events made it absolutely clear that

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the allegedly wrongful behavior could not reasonably be expected to recur.” TOC, Inc., 528 U.S.

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at 189. “The heavy burden of persuading the court that the challenged conduct cannot reasonably

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be expected to start up again lies with the party asserting mootness,” id., “otherwise [it] would

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simply be free to ‘return to ([its]) old ways’ after the threat of a lawsuit had passed,” Armster v.

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U.S. Dist. Court for Cent. Dist. of Cal., 806 F.2d 1347, 1359 (9th Cir. 1986) (parenthesis in

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original).

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Several district courts have assessed voluntary cessation where, as here,
defendants modified the parking lot in response to plaintiff’s claims and, have found potential
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recurrence doubtful because “structural modifications . . . are unlikely to be altered in the future.”

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Indep. Living Res. v. Or. Arena Corp., 982 F.Supp. 698, 774 (D.Or. 1997) (concluding parking lot

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modifications mooted ADA claim because defendants would be subject to the “high cost of

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litigation” if non-compliance recurred) declined to follow on different grounds by Miller v. Cal.

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Speedway Corp., 536 F.3d 1020, 1024 (9th Cir. 2008); see also Grove v. De La Cruz, 407

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F.Supp.2d 1126, 1130–31 (C.D. Cal. 2005) (restaurant’s installation of grab rails mooted

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plaintiff’s ADA complaint requesting installation of such rails; court found no basis to conclude

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the restaurant would repeat the challenged conduct).

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Yet other courts, including the Ninth Circuit, have probed more deeply,

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questioning whether defendants could simply remove or fail to maintain the structural

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modification after dismissal. One factor courts evaluate in predicting possible recurrence is the

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defendant’s history of compliance. In Moeller v. Taco Bell Corp., 816 F.Supp.2d 831, 860 (N.D.

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Cal. 2011), for example, the court held despite the restaurant’s structural modifications, its past

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failure to follow its own accessibility policies to ensure ADA compliance led the court to

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conclude discrimination would recur. Id. The Ninth Circuit, in a case based on different claims

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and facts, engaged in a fact intensive analysis and found defendants in the case were not likely to

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engage in recurring violations because they were subject to a federally-mandated policy requiring

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a biological opinion or plan that would not expire for three years. Am. Rivers v. Nat’l Marine

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Fisheries Serv., 126 F.3d 1118, 1124 (9th Cir. 1997).

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In evaluating the likelihood of recurrence, courts also consider whether defendants

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have spent considerable sums of money altering their properties to achieve ADA compliance. See

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e.g., Harty v. N. Lauderdale Supermarket, Inc., No. 14–62945, 2015 WL 4638590, at *5 (S.D.

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Fla. Aug. 4, 2015) (“It would be absurd to expect Defendant to spend money to undo the

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structural modifications it just paid to implement.”); Kennedy v. Nick Corcokius Enters., Inc., No.

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15–80642, 2015 WL 7253049, at *4 (S.D. Fla. Nov. 17, 2015) (finding recurrence doubtful where

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“[d]efendant has admitted liability as to [ADA] claims and has invested time and money in

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remedying these twenty-five separate violations.”); Houston v. 7-Eleven, Inc., No. 13–60004,

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2014 WL 351970, at *2 (S.D. Fla. Jan. 31, 2014). In Houston, the court concluded the
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defendants’ discrimination was not likely to recur because defendants had spent over $30,000 to

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upgrade their restaurant, including “repaving and restriping the parking lot and enlarging the

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existing disabled parking space and access isle, remodeling the restroom to make it larger,

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relocating the sink, installing a new tile floor, and relocating the back storage room at the store.”

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Houston, 2014 WL 351970, at *2.

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Here, the court concludes defendants have not met their “heavy burden” to show

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their challenged conduct will not recur. Defendants contend plaintiff’s claim is moot because

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they have repaved and restriped the accessible parking space. Mot. at 3; Tackett Decl. ¶ 8, ECF

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No. 14-3. Defendants cite to the declaration of William Zellmer, a building code interpretation

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specialist, to argue their modifications amount to compliance. See Mot. at 2; see also Zellmer

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Decl., ECF No. 14-2. Zellmer avers, “I have determined that the Burger Barn meets all

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applicable construction-related accessibility standards.” Zellmer Decl. ¶ 10. But because this

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expert opinion resolves an “ultimate issue” of liability, the court may not rely on it. See Elsayed

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Mukhtar v. Cal. State Univ., Hayward, 299 F.3d 1053, 1065 n.10 (9th Cir. 2002) (“[A]n expert

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witness cannot give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of

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law”), overruled on other grounds by Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457 (9th

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Cir. 2014). Without additional evidence or authority, defendants’ arguments are unavailing.

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Additionally, plaintiff has pointed to evidence convincing the court defendants’

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conduct may recur. Armster, 806 F.2d at 1359. Plaintiff alleges before he filed suit, defendants

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did not maintain their parking lot on at least two occasions, Compl. ¶¶ 32–34. Accordingly,

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defendants’ failure to address a claimed history of ADA non-compliance, coupled with the

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common sense observation that repaved and restriped parking spaces fade over time and thus

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require repeated resurfacing, it is not “absolutely clear that the allegedly wrongful behavior could

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not reasonably be expected to recur.” TOC, Inc., 528 U.S. at 189.

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On the record before it, the court DENIES defendants’ motion.

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IV.

CONCLUSION

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The court DENIES defendants’ motion to dismiss.

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This order resolves ECF No. 14-1.

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IT IS SO ORDERED.

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DATED: July 5, 2017.

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UNITED STATES DISTRICT JUDGE

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