Johnson v. Young et al

Filing 14

ORDER signed by District Judge Kimberly J. Mueller on 4/19/2018 DENYING 7 Motion to Dismiss for Lack of Subject-Matter Jurisdiction. Initial Scheduling Conference set for 5/24/2018, at 02:30 PM, in Courtroom 3 (KJM), before District Judge Kimberly J. Mueller. A joint status report as required by the court's initial scheduling order due 7 days before. (York, M)

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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. 2:17-cv-01642-KJM-KJN

v.

ORDER

YONIE YOUNG; ZOLTAN VARGA;
PERSIMMON HEALTH CENTER, INC.,
Defendants.

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Plaintiff Scott Johnson suffers from quadriplegia and uses a wheelchair and a

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specially equipped van for mobility. Compl., ECF No. 1, ¶ 1. He brings this Americans with

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Disabilities Act (“ADA”) lawsuit based on accessibility violations he alleges he encountered in an

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acupuncture clinic parking lot. Id. ¶¶ 16-19. Within a month of plaintiff’s filing suit, defendants

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repaired the alleged accessibility barriers. Defendants now move to dismiss plaintiff’s complaint

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for lack of subject-matter jurisdiction. Mot., ECF No. 7; Defs.’ Mem., ECF No. 7-1. Plaintiff

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opposes. Opp’n, ECF No. 10. Defendants filed a reply. Reply, ECF No. 12. The court

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submitted the motion on March 16, 2018. As explained below, the court DENIES this motion.

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I.

BACKGROUND

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Plaintiff alleges that every time he visited the defendant clinic, Persimmon

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Community Acupuncture (“Clinic”), between September 2016 and January 2017, the parking lot

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contained no ADA-compliant van-accessible parking spaces. Id. ¶ 19. Instead, there was one

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standard, non-van-accessible parking space for people with disabilities. Id. ¶ 20. “On

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information and belief,” plaintiff alleges there used to be a compliant, van-accessible parking

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space but it “either faded or got paved over” and that defendants had no “policy or plan in place

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to make sure that the accessible parking spaces . . . remained useable prior to plaintiff’s visits” or

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“remain usable currently.” Id. ¶¶ 21-24. He further alleges, “on information and belief” and with

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no specifics, “that there are other violations and barriers on the site that relate to his disability.”

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Id. ¶ 34.

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On August 7, 2017, he sued the Clinic owner, Persimmon Health Center, Inc., and

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the property owners, Yonie Young and Zoltan Varga, id. ¶¶ 2-11, for violating the ADA and the

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California Unruh Act, id. ¶¶ 36-46. He seeks an order “compelling Defendants to comply with

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[both laws].” Id. at 8, Prayer ¶ 1. A month later, defendant Young purportedly remedied these

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barriers by re-striping the parking lot; painting an International Sign of Accessibility (“ISA”) on

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the pavement; and purchasing an ISA sign that says “NO PARKING” and warns that violators

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will be fined $250.00. Young Decl., ECF No. 7-3, ¶ 3 (describing remediation); see also Ex. 1

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(photos). Defendant Young further declares that in October 2017, he fixed accessibility barriers

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in the clinic itself, based on recommendations from a Certified Access Specialist. Id. ¶¶ 4-10

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(describing changes including buying an ADA complaint transaction table; buying another ISA

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sign; and adjusting accessibility of the front entrance). Citing these modifications, defendants

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move to dismiss plaintiff’s lawsuit, contending plaintiff no longer has standing to sue and that his

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claims are moot. See Defs.’ Mem. at 4-5.

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II.

LEGAL STANDARD

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Standing and mootness pertain to a federal court’s subject-matter jurisdiction and

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may, as here, be cited as a basis for Rule 12(b)(1) dismissal. See Fed. R. Civ. P. 12(b)(1); White

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v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). Standing, which is an essential component of Article
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III’s case or controversy requirement, imposes injury and causation requirements that limit when

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a plaintiff may initiate a lawsuit. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528

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U.S. 167, 180-81 (2000) (listing elements). Mootness is triggered when the injury giving rise to

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the case no longer exists. Powell v. McCormack, 395 U.S. 486, 496 (1969).

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A party may challenge subject matter jurisdiction either facially or factually.

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White, 227 F.3d at 1242. In a facial attack, the court assumes the complaint’s allegations are true

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

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Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a factual attack, which challenges the veracity of

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plaintiff’s jurisdictional facts, the court considers evidence beyond the complaint and does not

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presume the truth of all allegations. McCarthy v. United States, 850 F.2d 558, 560 (9th Cir.

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1988). Although cases are presumed to fall outside a federal court’s limited jurisdiction until

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proven otherwise, jurisdictional dismissals are “exceptional” and warranted only “‘where the

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

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

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and frivolous.’” Safe Air, 373 F.3d at 1039 (quoting Bell v. Hood, 327 U.S. 678, 682-83 (1946)).

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III.

DISCUSSION

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Defendants bring a factual challenge to the court’s jurisdiction, arguing they have

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remedied all barriers giving rise to plaintiff’s claims. Defs.’ Mem. at 4-5; see generally Young

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Decl. Defendants contend their remedial measures strip plaintiff of standing to sue and that these

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measures moot plaintiff’s claims. Defs.’ Mem. at 4-5.

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A.

Standing
Defendants do not argue plaintiff lacked standing at the outset; rather they argue

plaintiff lacks standing now that the barriers have purportedly been removed. Id. at 4.
The court disagrees. Because standing is assessed at the time the complaint is

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filed, defendants’ subsequent remediation does not invalidate plaintiff’s standing. Lujan v. Defs.

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of Wildlife, 504 U.S. 555, 568 n.4 (1992). Plaintiff had standing when he filed his complaint: He

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alleged he previously visited the Clinic but could not fully enjoy it because defendants did not

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maintain a van-accessible parking lot. Compl. ¶¶ 18-20, 25-27, 29-30, 33. This failure, plaintiff
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contends, violated the ADA and the Unruh Act. Id. ¶¶ 36-46. These allegations satisfy all

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standing requirements, as plaintiff adequately alleges injury in fact traceable to defendants’

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conduct that a favorable decision could resolve. See Friends of the Earth, 528 U.S. at 180-81

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(listing standing elements); cf. Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1041 (9th Cir. 2008)

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(plaintiff had standing where he previously visited public accommodation and is currently

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deterred from visiting that accommodation by accessibility barriers). Defendants’ later

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remediation does not alter this conclusion. See Lujan, 504 U.S. at 569 n.4; cf. Friends of the

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Earth, 528 U.S. at 175 (“[W]e have held that citizens lack statutory standing under § 505(a) to

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sue for violations that have ceased by the time the complaint is filed.”) (citation omitted).

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Plaintiff has standing. The question, rather, is whether defendants’ remedial action
moots plaintiff's claims.
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Mootness
Defendants concede the Clinic’s parking lot did not previously meet accessibility

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standards, but contend plaintiff's claim is moot because the parking lot now meets those

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standards. Defs.’ Mem. at 4-5. In opposition, plaintiff contends defendants’ accessibility barriers

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could easily recur, triggering the “voluntary cessation” mootness exception. Opp’n at 6-7.

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Generally a claim becomes moot when “interim relief or events have completely

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and irrevocably eradicated the effects of the alleged violation” at issue. Los Angeles Cty. v.

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Davis, 440 U.S. 625, 631 (1979). There is, however, a well-recognized exception where the

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defendant voluntary stops the offending conduct. Rosemere Neighborhood Ass’n v. U.S. EPA,

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581 F.3d 1169, 1173 (9th Cir. 2009). When mootness is based on such “voluntary cessation,”

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defendants face a “heavy burden” to persuade the court that the challenged conduct cannot

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reasonably be expected to recur, “otherwise they would simply be free to ‘return to their old ways

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after the threat of a lawsuit had passed.’” Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 72,

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(1983) (quoting United States v. W.T. Grant Co., 345 U.S. 629 (1953) (brackets omitted)).

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Some courts decline to apply the voluntary cessation mootness exception to similar

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scenarios, deeming accessibility remediation efforts sufficiently permanent. See, e.g., Grove v.

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De La Cruz, 407 F. Supp. 2d 1126, 1130-31 (C.D. Cal. 2005) (concluding that by installing
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permanent guard rails, defendant restaurant mooted plaintiff’s ADA claims; finding no basis to

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conclude the rails would be removed); Indep. Living Res. v. Or. Arena Corp., 982 F. Supp. 698,

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774 (D. Or. 1997) (concluding parking lot modifications mooted ADA claim because defendants

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would be subject to the “high cost of litigation” if non-compliance recurred), reversed on other

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grounds by Miller v. Cal. Speedway Corp., 536 F.3d 1020, 1024 (9th Cir. 2008).

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But other courts inquire further to ensure defendants could not simply remove, or

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on the other hand inadequately maintain, a structural modification after dismissal for mootness.

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One factor these courts look to is a defendant’s past conduct, as it may predict possible

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recurrence. See In Moeller v. Taco Bell Corp., 816 F. Supp. 2d 831, 860 (N.D. Cal. 2011)

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(holding restaurant’s past failures to follow accessibility policies showed discrimination may

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recur despite recent structural modifications). Another predictive factor is the amount of money

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defendants have spent on remediation efforts. See, e.g., Houston v. 7–Eleven, Inc., No. 13-60004,

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2014 WL 351970, at *2 (S.D. Fla. Jan. 31, 2014) (finding discrimination unlikely to recur where

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restaurant spent over $30,000 repaving and restriping the parking lot, enlarging disabled parking

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space and access aisle, remodeling restroom, relocating sink, installing tile floor, and relocating

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storage room); see also Kennedy v. Nick Corcokius Enters., Inc., No. 15-cv-80642, 2015 WL

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7253049, at *4 (S.D. Fla. Nov. 17, 2015) (finding recurrence doubtful where defendant invested

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“time and money in remedying these twenty-five separate violations”); Harty v. N. Lauderdale

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Supermarket, Inc., No. 14-civ-62945, 2015 WL 4638590, at *5 (S.D. Fla. Aug. 4, 2015) (“It

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would be absurd to expect Defendant to spend money to undo the structural modifications it just

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paid to implement.”).

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Here, defendants have not met their “heavy burden” to show plaintiff’s claims are

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moot because they have not shown the alleged parking lot accessibility violations will not recur.

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Defendants contend they repaved and restriped the accessible parking space and purchased a

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$76.87 ISA sign. Young Decl. ¶¶ 3, 6. It is easy to image a newly-striped parking spot could go

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without maintenance. Cf. Johnson v. Tackett, 272 F. Supp. 3d 1198, 1204 (E.D. Cal. 2017)

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(similar facts; same conclusion). And defendants’ remediation costs are not so significant as to

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persuade the court that possible recurrence is unlikely. Cf. Houston, 2014 WL 351970, at *2

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($30,000 modifications enough to show unlikely recurrence).

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Plaintiff also has alleged facts showing defendants’ policies and past conduct

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indicate the possibility of recurrence. Plaintiff alleges he sporadically visited the Clinic over the

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course of five months and faced the same accessibility barriers each time. Compl. ¶ 16 (visits in

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September, October, November and December 2016, and January 2017); cf. Tackett, 272 F. Supp.

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3d at 1204 (finding likely recurrence in similar ADA case where plaintiff visited the parking lot

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only twice before filing suit). He also alleges the Clinic once had a compliant, van-accessible

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parking space but it “either faded or got paved over”; he alleges defendants have no “policy or

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plan in place” to ensure maintenance of accessible parking spaces; and he alleges the violations at

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issue “are easily removed without much difficulty or expense.” Compl. ¶¶ 21-24, 31. All of

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these allegations together persuade the court that it is not “absolutely clear that the allegedly

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wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, 528 U.S. at

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189.

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In short, on the current record, considering the relatively small-scale and arguably

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temporary remediation efforts, the court finds defendants have not met their “very high” burden

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to establish mootness.

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IV.

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CONCLUSION
The court DENIES defendants’ motion. An initial scheduling conference is set for

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May 24, 2018 at 2:30 p.m., with a joint status report as required by the court’s initial scheduling

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order due 7 days before.

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IT IS SO ORDERED.

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This order resolves ECF No. 7.

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DATED: April 19, 2018.

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UNITED STATES DISTRICT JUDGE

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