Johnson v. 5530 Monterey Road LLC et al

Filing 25

ORDER DENYING 13 MOTION TO DISMISS by Judge William H. Orrick. Plaintiff will have 20 days leave to amend his Complaint. (jmdS, COURT STAFF) (Filed on 11/16/2020)

Case 3:20-cv-04740-WHO Document 25 Filed 11/16/20 Page 1 of 8

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SCOTT JOHNSON,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 20-cv-04740-WHO
ORDER DENYING MOTION TO
DISMISS

v.
5530 MONTEREY ROAD LLC, et al.,

Dkt. No. 13

Defendants.

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INTRODUCTION

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Plaintiff Scott Johnson is a California resident with physical disabilities. Dkt. No. 1

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Complaint (“Compl.”) ¶ 1. He is a level C-5 quadriplegic, cannot walk, and has significant

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manual dexterity impairments. Id. He uses a wheelchair for mobility and a specially equipped

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van. Id. Defendants 5530 Monterey Road LLC and Travel Inn Gilroy LLC own the real property

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and a motel located at 5530 Monterey Road in Gilroy, California (the “Property”), which is a place

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of public accommodation and business establishment open to the public. Id. ¶¶ 2-5, 11. Plaintiff

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alleges that the Property has various physical barriers that do not comply with disability access

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laws. Based on these alleged physical barriers, on July 15, 2020, plaintiff filed this action,

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asserting claims against the defendants under (1) the Americans with Disabilities Act (“ADA”);

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and (2) California’s Unruh Civil Rights Act. See Compl. ¶¶ 27-44.

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On August 14, 2020, defendants moved to dismiss this action under Rule 12(b)(1), arguing

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that the alleged physical barriers identified in plaintiff’s Complaint have been resolved, as

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indicated in their concurrently filed expert declaration, and that plaintiff’s claims are moot. Dkt.

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No. 13-1, Motion to Dismiss (“Motion”) at 7-8. Defendants also argued that, given the mootness

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of the ADA claims, this Court should exercise its discretion to decline to hear plaintiff’s

Case 3:20-cv-04740-WHO Document 25 Filed 11/16/20 Page 2 of 8

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supplemental state claims. Id. at 10. On August 28, 2020, plaintiff opposed defendant’s motion to

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dismiss, arguing that the motion improperly asks this Court to determine the merits of plaintiff’s

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claims in order to assess jurisdiction. Dkt. No. 14, Opposition (“Opp.”) at 1-4. Plaintiff also

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argued that defendants’ expert declaration was insufficient to establish that the physical barriers

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described in plaintiff’s Complaint were fully resolved. Id. at 4-8.

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On September 14, 2020, I issued an Order stating, in part, that plaintiff could file a

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supplemental substantive response to defendants’ motion to dismiss, by October 28, 2020,

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following the parties’ joint on-site inspection of the Property, and that defendants could file a

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supplemental reply by November 4, 2020. Dkt. No. 16-1. On October 27, 2020, plaintiff filed a
supplemental opposition to defendants’ motion to dismiss along with the declaration of Tim

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United States District Court
Northern District of California

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Wegman, which identifies several remaining physical barriers still present at the Property. See

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Dkt. No. 19, Supplemental Opposition (“Supp. Opp.”); Dkt. No. 19-1, Wegman Decl. On

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November 4, 2020, defendants filed a supplemental reply, arguing that these alleged remaining

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barriers either do not exist, or have now been remedied. See Dkt. No. 20, Supplemental Reply

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(“Supp. Reply”). On November 5, 2020, defendants submitted a supplemental Lobnow

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declaration in support of this supplemental reply. See Dkt. No. 21 Supp. Lobnow Decl.

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For the reasons outlined below, I conclude that there are facts in dispute regarding whether

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the alleged physical barriers at the Property have been resolved. Accordingly, defendants’ motion

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to dismiss on mootness grounds is DENIED. Further, I decline to use my discretion to dismiss

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plaintiff’s state claims and defendants’ motion to dismiss these claims is also DENIED. Because

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some of the alleged barriers plaintiff describes in his briefing are not clearly alleged in the

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Complaint, plaintiff will have 20 days leave to amend his Complaint to allege facts regarding

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these barriers.
BACKGROUND

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I.

COMPLAINT ALLEGATIONS
In October 2019, January 2020, and February 2020, plaintiff traveled to the Property with

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the intention of using the Property’s services and, in part, to determine whether the Property

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complies with disability access laws. Compl. ¶ 10. He alleges that when he visited the Property,
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the defendants “failed to provide wheelchair accessible parking in conformance with the ADA

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Standards as it relates to wheelchair users like the plaintiff” and that the Property still does not

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have wheelchair accessible parking. Id. ¶¶ 12-13. He further alleges, on information and belief,

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that at the times he visited, and presently, the Property did not and does not have (1) a wheelchair

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accessible guestroom; (2) wheelchair accessible door hardware at the lobby entrance; and (3)

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wheelchair accessible transaction counters. Id. ¶¶ 14-19.

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II.

In support of their motion to dismiss, defendants submitted a declaration from Craig

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DEFENDANTS’ LOWNOW DECLARATION

Lobnow. Dkt. No. 13-2, Lobnow Decl. Lobnow declares that he visited the Property on August
10, 2020, inspected the alleged physical barriers described in plaintiff’s Complaint, and prepared a

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United States District Court
Northern District of California

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report of his findings. Id. ¶ 4. Based on his inspection, Lobnow declares that the Property’s

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accessible parking is ADA compliant because (1) the accessible parking space is 108 inches wide;

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(2) the access aisle is 96 inches wide; (3) the parking space and access aisle are the same length;

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(4) the parking space and aisle have correct painted markings; and (5) the running slopes of the

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parking space and access aisle are not greater than 2.0%. Id. ¶¶ 5-6. Further, Lobnow declares

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that the Property’s guestrooms are ADA compliant because the Property has one accessible

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guestroom out of 24, and the accessible guestroom interior, toilet, and bathroom meet ADA

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requirements for entrances, doors, and doorways. Id. ¶¶ 7-8. Finally, Lobnow declares that the

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lobby entrance door hardware complies with the ADA, noting that it can be operated with one

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hand; is within 15-48 inches from a front or side approach; does not require tight grasping,

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pinching, or twisting of the wrist, and does not require a force to activate of more than five

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pounds. Id. ¶¶ 9-11.

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III.

PLAINTIFF’S WEGMAN DECLARATION

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In support of his supplemental opposition, plaintiff submitted the declaration of Tim

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Wegman. In his declaration, Wegman declares that he participated in a joint site inspection of the

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Property on October 21, 2020. Wegman Decl. ¶ 21. Wegman declares that, using a digital level,

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he determined the slope of the parking space at the Property was 2.4% and 2.3% at various points.

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Id. ¶ 3. He further declares that he took multiple measurements and made various observations
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regarding the accessible guestroom shower noting that: (1) the shower measured 60 inches wide

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by 30 inches deep; (2) the shower contains a grab bar that can be moved up and down from a

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maximum low point of 52 inches to a high of 71 inches; (3) the shower seat is bolted and affixed

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to the wall and cannot be folded up; and (4) the shower seat is rectangular in design and measures

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13.5 inches from the side wall to the front edge of the seat. Id. ¶¶ 3-6.

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IV.

DEFENDANTS’ SUPPLEMENTAL LOBNOW DECLARATION
On November 5, 2020, defendants submitted a supplemental declaration of Craig Lobnow

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addressing the barriers described in the Wegman declaration. See Supp. Lobnow Decl. In this

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declaration, Lobnow explains that (1) he measured the slope of the parking space at various points
and that all points now have less than a 2% slope; (2) the guestroom bathroom shower seat

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United States District Court
Northern District of California

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measures 15 inches from the side wall to the front edge of the seat; (3) the shower grab bar is now

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48 inches from the shower floor; and (4) the shower seat can be folded up. Supp. Lobnow Decl.

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¶¶ 5, 7, 9-10.
LEGAL STANDARD

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I.

RULE 12(b)(1)
A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure is a

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challenge to the court’s subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). “Federal courts

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are courts of limited jurisdiction,’ and it is “presumed that a cause of action lies outside this

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limited jurisdiction.” Kokkonen v. Guardian Life Ins. of Am., 511 U.S. 375, 377 (1994). The

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party invoking the jurisdiction of the federal court bears the burden of establishing that the court

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has the authority to grant the relief requested. Id.

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A challenge pursuant to Rule 12(b)(1) may be facial or factual. See White v. Lee, 227 F.3d

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1214, 1242 (9th Cir. 2000). In a facial attack, the jurisdictional challenge is confined to the

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allegations pled in the complaint. See Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004).

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The challenger asserts that the allegations in the complaint are insufficient “on their face” to

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invoke federal jurisdiction. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.

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2004). To resolve a facial challenge, the court assumes that the allegations in the complaint are

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true and draws all reasonable inferences in favor of the party opposing dismissal. In contrast, with
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a factual attack, a court may “look beyond the complaint to matters of public record without

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having to convert the motion into one for summary judgment” and “need not presume the

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truthfulness of the plaintiffs’ allegations.” White, 227 F.3d at 1242. “Once the moving party has

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

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

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evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” Savage v.

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Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003).
“Jurisdictional finding of genuinely disputed facts is inappropriate when ‘the jurisdictional

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issue and substantive issues are so intertwined that the question of jurisdiction is dependent on the

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resolution of factual issues going to the merits’ of an action.” Safe Air for Everyone, 373 F.3d at

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United States District Court
Northern District of California

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1039 (quoting Sun Valley Gas., Inc. v. Ernst Enters., 711 F.2d 138, 140 (9th Cir. 1983).

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II.

SUPPLEMENTAL JURISDICTION

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Under 29 U.S.C. §1367(a), a district court has supplemental jurisdiction over claims that

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“are so related to claims in the action within such original jurisdiction that they form part of the

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same case or controversy under Article III.” 29 U.S.C. §1367(a). A district court may decline to

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exercise supplemental jurisdiction where “(1) the claim raises a novel or complex issue of State

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law, (2) the claim substantially predominates over the claim or claims over which the district court

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has original jurisdiction, (3) the district court has dismissed all claims over which it has original

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jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining

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jurisdiction.” Id. (c)(4).
DISCUSSION

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I.

MOOTNESS

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Defendants move to dismiss plaintiff’s claims under 12(b)(1), arguing that all the

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complained of barriers have been remedied. See Motion. Defendants rely on the declaration of

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their expert, Craig Lobnow, to establish that the Property is now ADA compliant. See generally,

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Lobnow Decl. A district court is “ordinarily free to hear evidence regarding jurisdiction and to

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rule on that issue prior to trial,” Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983),

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including on a Rule 12(b)(1) motion to dismiss. However, the Ninth Circuit has cautioned that it
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is inappropriate to resolve factual disputes on a motion to dismiss where “the jurisdictional issue

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and substantive issues are so intertwined that the question of jurisdiction is dependent on the

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resolution of factual issues going to the merits of an action.” Safe Air for Everyone, 373 F.3d at

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1039 (internal quotation marks and citation omitted).

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In ADA cases, the continuing existence of physical barriers is both a jurisdictional and

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substantive issue and accordingly, courts generally decline to dismiss ADA claims on mootness

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grounds unless there is no factual dispute that the alleged barriers have been remedied. See,

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e.g. Ngoc Lam Che v. San Jose/Evergreen Cmty. Coll. Dist. Found., Case No. 17-cv-00381-BLF,

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2017 WL 2954647, at *3 (N.D. Cal. July 11, 2017) (denying Rule 12(b)(1) motion where the
parties submitted competing expert declarations); Alcazar v. Bubba Gump Shrimp Co.

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United States District Court
Northern District of California

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Restaurants, Inc., Case No. 20-cv-02771-DMR, 2020 WL 4601364, at *4 (N.D. Cal. Aug. 11,

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2020) (denying motion to dismiss ADA claims for mootness where parties submitted competing

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declarations regarding remedial measures); Powers v. Mad Vapatory LLC, Case No. 19-cv-05642-

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VKD, 2020 WL 3402245, at *6 (N.D. Cal. June 19, 2020) (“the Court will not dismiss the action

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at this juncture because the jurisdictional analysis is coextensive with the merits of Mr. Powers’s

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ADA claim”); Johnson v. Case Ventures, LLC, Case No. 5:19-cv-02876-EJD, 2020 WL 4747908

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(N.D. Cal. Aug. 17, 2020) (applying summary judgment standard to evidence re mootness of ADA

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claims); see also Langer v. Nenow, Case No. 18-cv-01670-GPC-PGS, 2020 WL 708144, at *4

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(S.D. Cal. Feb. 12, 2020) (finding that a plaintiff's ADA claim was moot where a defendant

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submitted evidence and an expert report that the alleged violations had been cured and plaintiff did

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not submit competing evidence).

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Here, there are facts in dispute regarding the current state of the Property. Defendants’

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expert Lobnow states in his declaration that the cross and running slopes of the Property’s

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accessible parking space and access aisle are not greater than 2.0%, as required by the ADA.

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Lobnow Decl. ¶¶ 5-6. In contrast, plaintiff’s investigator, Wegman, declares that the space’s slope

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reaches 2.4% and 2.3%. Wegman Decl. ¶ 3. In his supplemental declaration, Lobnow again

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disputes this finding, declaring that the parking space and access aisle slopes do not exceed 2.0%.

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Supp. Lobnow Decl. ¶ 5. This is a direct factual dispute regarding the slope of the Property’s
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parking space. In addition, in his declaration Lobnow declares that the Property’s accessible

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guestroom and bathroom “meet[] the requirements for entrances, doors, and doorways” and are

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compliant with accessibility codes. Lobnow Decl. ¶¶ 7-8. But the Wegman declaration submitted

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by plaintiff identifies three remaining issues with the guestroom’s shower: (1) the shower spray

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unit reaches a maximum low point of 52 inches – but ADA standards require such units to be no

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higher than 48 inches above the shower floor; (2) the shower seat is bolted and fixed to the wall

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and cannot be folded up – but ADA standards require roll-in shower seats to fold; and (3) the

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shower seat measures 13.5 inches from the side wall to the front edge of the seat – but ADA

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standards require such seats to measure between 15 and 16 inches from the seat wall. Wegman

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Decl. ¶¶ 3-6; Supp. Opp. at 3-4. The supplemental Lobnow declaration disputes these findings,

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United States District Court
Northern District of California

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instead concluding that (1) the shower spray unit has been lowered so that it reaches the required

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48 inches above the shower floor height; (2) the shower seat is foldable; and (3) the shower seat is

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15 inches, not 13.5 inches, from the shower wall. Supp. Lobnow Decl. ¶¶ 7, 9-10. Again, there is

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a direct factual dispute between the parties’ submitted declarations regarding the shower’s

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compliance with ADA standards.
In addition, defendants’ declarations and briefing do not address or rebut plaintiff’s

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allegation that the Property does not have accessible transaction counters. See Compl. ¶ 19.

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Defendants have not attempted to argue or put forth facts demonstrating that this alleged barrier

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has been cured and thus, even absent the factual disputes described above, I cannot conclude that

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plaintiff’s claims are moot.
Because there appears to be a legitimate factual dispute as to whether the Property is

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currently ADA compliant, and because defendants have not rebutted plaintiff’s allegation that the

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Property does not have accessible transaction counters, defendants’ motion to dismiss plaintiff’s

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ADA claim for mootness is denied.

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II.

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SUPPLEMENTAL JURISDICTION
As defendants acknowledge, this Court has discretion to decline to exercise supplemental

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jurisdiction over plaintiff’s state law claims under various circumstances. However, because I

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conclude that plaintiff’s ADA claim is not moot, I decline to dismiss the state law claims.
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Plaintiff’s claims will be most efficiently litigated together in one forum and defendants do not

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identify any strong justification for declining jurisdiction of the state claims.

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CONCLUSION

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For the reasons outline above, defendants’ motion to dismiss is DENIED. Because

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plaintiff’s briefing and submitted expert declaration discuss physical barriers that are not clearly

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alleged in the Complaint, plaintiff will have 20 days leave to amend his Complaint to add factual

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allegations regarding these barriers.
The parties are reminded of their responsibilities under General Order 56. If they have not

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held their in person settlement meeting, they should do so (at the site or virtually) within the next .

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20 days. Within 35 days, they shall file the Notice of Need for Mediation as required by General

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United States District Court
Northern District of California

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Order 56 if the case has not resolved.

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IT IS SO ORDERED.

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Dated: November 16, 2020

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William H. Orrick
United States District Judge

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