Johnson v. 1082 El Camino Real, L.P et al

Filing 46

ORDER granting 39 Motion to Dismiss ADA claim for Lack of Jurisdiction; dismissing remaining state law claim pursuant to 28 U.S.C. Section 1367. Signed by Judge Edward J. Davila on 2/28/2018. (ejdlc3S, COURT STAFF) (Filed on 2/28/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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SCOTT JOHNSON,

Case No. 5:17-cv-01391-EJD

Plaintiff,
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v.
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1082 EL CAMINO REAL, L.P, HANKOOK
CENTER MANAGEMENT COMPANY,
LLC, COCASSIA, INC.,

Re: Dkt. No. 39

Defendants.
United States District Court
Northern District of California

ORDER GRANTING MOTION TO
DISMISS ADA CLAIM FOR LACK OF
SUBJECT MATTER JURISDICTION;
DISMISSING REMAINING STATE
LAW CLAIM PURSUANT TO 28 U.S.C.
§1367

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I. INTRODUCTION

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Defendants Cocassia, Inc., 1082 El. Camino Real, L.P., and Hankook Center Management

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Company, LLC move to dismiss the complaint for lack of subject matter jurisdiction pursuant to

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Federal Rule of Civil Procedure 12(b)(1). The Court finds it appropriate to take the motion under

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submission for decision without oral argument pursuant to Civil Local Rule 7-1(b). For the

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reasons set forth below, the motion is granted.

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II. BACKGROUND
Plaintiff Scott Johnson’s complaint includes the following allegations. Plaintiff is a level

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C-5 quadriplegic. He cannot walk and has significant manual dexterity impairments. He uses a

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wheelchair for mobility and has a specially equipped van. Plaintiff has gone to the Hankook

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Supermarket (“Hankook”) located at 1092 E. El Camino Real, Sunnyvale, California, on a number

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of occasions between August 2016 and January 2017. Plaintiff went to Hankook to shop.

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Plaintiff alleges that “the parking stalls and access aisles for use by persons with disabilities are

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not level with each other because there is a built up curb ramp that runs into the access aisle and

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CASE NO.: 5:17-CV-01391-EJD
ORDER GRANTING MOTION TO DISMISS ADA CLAIM FOR LACK OF SUBJECT
MATTER JURISDICTION; DISMISSING REMAINING STATE LAW CLAIM PURSUANT
TO 28 U.S.C. §1367
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parking stall. This results in slopes greater than 2.1%.” Complaint at ¶23. Plaintiff alleges that

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these conditions on the property are “barriers,” which existed during each of his visits to Hankook.

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Plaintiff further alleges that he is and has been deterred from returning and patronizing Hankook

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because of the barriers.

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Plaintiff initiated this action on March 15, 2017, asserting two claims for disability

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discrimination: violation of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C.

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§12101, et seq.; and violation of California’s Unruh Civil Rights Act, Cal. Civ. Code §51-53

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(“Unruh Act”). A Joint Site Inspection was held on November 29, 2017. Defendants move to

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dismiss the ADA claim and request that the Court decline to exercise supplemental jurisdiction

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United States District Court
Northern District of California

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over the remaining Unruh Act claim pursuant to 28 U.S.C. §1367(c)(1)-(4).
III. STANDARDS
Rule 12(b)(1), Fed.R.Civ.P., authorizes a motion to dismiss for lack of subject matter

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jurisdiction. “Mootness . . . pertain[s] to a federal court’s subject-matter jurisdiction under Article

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III, [so it is] properly raised in a motion to dismiss under Federal Rule of Civil Procedure

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12(b)(1).” White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). A Rule 12(b)(1) motion may be

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either a facial or factual challenge to jurisdiction. Id. When a facial Rule 12(b)(1) motion to

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dismiss is presented, inquiry is confined to the allegations in the complaint. Wolfe v. Strankman,

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392 F.3d 358, 362 (9th Cir. 2004). When a factual Rule 12(b)(1) motion is presented, such as the

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one made by Defendants here, the Court may look beyond the complaint and need not presume the

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truthfulness of the plaintiff’s allegations. White, 227 F.3d at 1242. Faced with a factual

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challenge, the party opposing the motion to dismiss must produce affidavits or other evidence

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necessary to satisfy its burden of establishing subject matter jurisdiction. Safe Air For Everyone

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

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Further, when the jurisdictional issue is intertwined with the merits, a court “must apply

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the summary judgment standard in deciding the motion to dismiss.” Johnson v. California

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Welding Supply, Inc., No. 11-1669 WBS, 2011 WL 5118599 (E.D. Cal. Oct. 27, 2011).

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CASE NO.: 5:17-CV-01391-EJD
ORDER GRANTING MOTION TO DISMISS ADA CLAIM FOR LACK OF SUBJECT
MATTER JURISDICTION; DISMISSING REMAINING STATE LAW CLAIM PURSUANT
TO 28 U.S.C. §1367
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Plaintiff’s claim in this case and jurisdiction are both premised on the ADA, and so jurisdiction

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and substance are intertwined. Accordingly, the Court will apply the summary judgment standard

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to Defendants’ motion to dismiss for lack of subject matter jurisdiction.
IV. DISCUSSION

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Defendants contend that the ADA claim is moot. In support of the mootness challenge,

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Defendants submit an Accessibility Report prepared by a Certified Access Specialist dated April

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24, 2017, that contains a list of recommended changes to the Hankook property and a second

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Accessibility Report dated December 26, 2017, verifying that the recommended changes were

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made.

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Plaintiff opposes the motion on two grounds. First, Plaintiff contends that the motion is

United States District Court
Northern District of California

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premature because he has not had an opportunity to confirm the findings in the December

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Accessibility Report nor had an opportunity to depose its author. Dkt. 40, p. 3. To obtain

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postponement or denial of a motion for summary judgment based on the need for further

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discovery, a party must submit a declaration showing, among other things, facts indicating a

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likelihood that controverting evidence exists. See Tatum v. City & County of San Francisco, 441

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F.3d 1090, 1101 (9th Cir. 2006). Plaintiff has not submitted any declaration showing a likelihood

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that controverting evidence exists. Therefore, the Court is not required to postpone or deny

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Defendants’ motion.

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Second, Plaintiff contends that the motion to dismiss is barred by the stay under General

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Order 56, which imposes a stay on “[a]ll other discovery and proceedings.” At least two courts in

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this district have concluded that General Order 56 does not impose a stay on the filing of a

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responsive pleading. See Moralez v. Whole Foods Market, Inc., 897 F.Supp.2d 987, 993, n.2

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(N.D. Cal. 2012) (holding that the cited language “plainly refers to discovery issues, and does not

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bar a defendant from moving to dismiss on res judicata grounds); Che v. San Jose/Evergreen

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Community College District Foundation, et al., No. 17-381 BLF (N.D. May 26, 2017) (finding the

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stay imposed by General Order 56 does not clearly encompass the filing of an answer or motion in

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CASE NO.: 5:17-CV-01391-EJD
ORDER GRANTING MOTION TO DISMISS ADA CLAIM FOR LACK OF SUBJECT
MATTER JURISDICTION; DISMISSING REMAINING STATE LAW CLAIM PURSUANT
TO 28 U.S.C. §1367
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response to a complaint). This Court also finds that General Order 56 does not preclude

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Defendants from bringing the instant motion to dismiss for lack of subject matter jurisdiction.

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Turning to the merits of the motion, the undisputed evidence shows that Defendants have

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corrected the sole alleged access barrier alleged in the complaint. The ADA claim is therefore

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moot and dismissed for lack of subject matter jurisdiction.

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V. CONLCUSION

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For the reasons set forth above, Plaintiff’s ADA claim is dismissed. Pursuant to 28 U.S.C.

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§1367(c) (3), the Court declines to exercise supplemental jurisdiction over the remaining Unruh

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Act claim and dismisses the claim without prejudice.
The Clerk shall close the file.

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United States District Court
Northern District of California

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IT IS SO ORDERED.

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Dated: February 28, 2018
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EDWARD J. DAVILA
United States District Judge

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CASE NO.: 5:17-CV-01391-EJD
ORDER GRANTING MOTION TO DISMISS ADA CLAIM FOR LACK OF SUBJECT
MATTER JURISDICTION; DISMISSING REMAINING STATE LAW CLAIM PURSUANT
TO 28 U.S.C. §1367
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