Scott Johnson v. Blackhawk Centercal, LLC et al

Filing 83

ORDER DENYING 76 MOTION TO AMEND ORDER by Judge William Alsup. (whalc1, COURT STAFF) (Filed on 10/16/2018)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7
FOR THE NORTHERN DISTRICT OF CALIFORNIA
8
9
SCOTT JOHNSON,
Plaintiff,

11
For the Northern District of California

United States District Court

10

12

No. C 17-02454 WHA

v.

13
14

ORDER DENYING MOTION
TO AMEND ORDER

STARBUCKS CORPORATION, a
Washington Corporation, and DOES 1–10,
Defendants.

15
16
17
18
19
20

/
INTRODUCTION
In this action brought under the Americans with Disabilities Act, plaintiff moves to
amend a prior order. For the reasons stated below, the motion is DENIED.
STATEMENT
Plaintiff Scott Johnson initiated this matter in April 2017 against defendant Starbucks

21

Corporation, alleging violations of the Americans with Disability Act and the Unruh Civil

22

Rights Act at a Starbucks store in Danville, California. In an August 8 discovery letter brief,

23

defendant argued that plaintiff had withheld evidence related to plaintiff’s standing to sue in this

24

action. An August 16 order set an evidentiary hearing related to the parties’ discovery dispute.

25

Specifically, the August 16 order explained that the evidentiary hearing would cover (1) any

26

pattern or practice by plaintiff of bringing ADA lawsuits without visiting the businesses sued,

27

and (2) the number of times plaintiff visited the Starbucks location at issue in this case. On

28

September 10, the Court held a three-hour evidentiary hearing at which five witnesses testified.
A September 11 order made certain factual findings based on the evidence presented at the

1

evidentiary hearing. Plaintiff now moves to correct the September 11 order under Rule 60(a),

2

proposing three changes (Dkt. Nos. 1, 58, 64, 71, 76).

3

This order follows full briefing. Pursuant to Civ. L.R. 7-1(b), this order finds plaintiff’s

4

motion suitable for submission without oral argument and hereby VACATES the hearing

5

scheduled for October 25.

6

ANALYSIS

7

Under Rule 60(a), “[t]he court may correct a clerical mistake or a mistake arising from

8

oversight or omission whenever one is found in a judgment, order, or other part of the record.”

9

While the rule allows for correction of clerical errors and oversights, it does not permit
correction of substantive mistakes. In Blanton v. Anzalone, 813 F.2d 1574, 1577 n.2 (9th Cir.

11
For the Northern District of California

United States District Court

10

1987) (emphasis in original), our court of appeals explained:

12

15

The basic distinction between “clerical mistakes” and mistakes that
cannot be corrected pursuant to Rule 60(a) is that the former consist of
“blunders in execution” whereas the latter consist of instances where
the court changes its mind, either because it made a legal or factual
mistake in making its original determination, or because on second
thought it has decided to exercise its discretion in a manner different
from the way it was exercised in the original determination.

16

Plaintiff moves to correct the September 11 order in three ways. First, the September 11

13
14

17
18
19

order found:
Plaintiff’s investigatory practices have also included authorizing his
assistants to look for violations of disability laws while traveling on
personal vacations, even though plaintiff was not himself present, so
that plaintiff could send demand letters to those establishments.

20
Plaintiff argues that because he did not receive money as a result of these letters, the
21
phrase “demand letters” is an unfair characterization. Plaintiff further argues that describing
22
these letters as having been sent “even though plaintiff was not present” suggests that plaintiff
23
did something “illicit.” Second, without pointing to any particular language, plaintiff argues that
24
the September 11 order “gives the impression” that the testimony presented at the September 10
25
hearing surrounded his current business practices. Third, plaintiff argues that use of the term
26
“drive-by” is pejorative in the context of ADA lawsuits and “implies a behavior that was not
27
established or explored at the hearing.”
28
2

1

The September 11 order’s findings are fully supported by the record. These requested

2

changes, in any event, are based on purportedly factual or legal mistakes. As such, the changes

3

fall beyond the scope of clerical mistakes and oversights permitted under Rule 60(a). See

4

Blanton, 813 F.2d at 1577. Given that plaintiff moves to correct the September 11 order only

5

under Rule 60(a), his motion must be DENIED.

6

CONCLUSION

7

For the reasons stated above, plaintiff’s motion under Rule 60(a) is DENIED. The

8

October 25 hearing is hereby VACATED.

9
IT IS SO ORDERED.
11
For the Northern District of California

United States District Court

10
Dated: October 16, 2018.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3