Nevarez et al v. Sumavision SFO LLC et al

Filing 25

ORDER DENYING 13 DEFENDANT'S MOTION TO DISMISS THE COMPLAINT. Signed by Judge Beth Labson Freeman on 2/12/2018. (blflc2S, COURT STAFF) (Filed on 2/12/2018)

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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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ABDUL NEVAREZ, ET AL.,
Plaintiffs,

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v.

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Case No. 17-cv-03137-BLF

SUMAVISION SFO LLC,

ORDER DENYING DEFENDANT’S
MOTION TO DISMISS THE
COMPLAINT

Defendant.

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United States District Court
Northern District of California

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Before the Court is Defendant Sumavision SFO LLC’s (“Defendant”) motion to dismiss

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Plaintiffs Abdul Nevarez and Priscilla Nevarez’s (collectively, “Plaintiffs”) Complaint in this

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action brought pursuant to the Americans with Disabilities Act (“ADA”) and the California Unruh

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Civil Rights Act (“Unruh Act”). See ECF 13 (“Mot.”). The Court previously found this motion

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suitable for disposition without oral argument pursuant to Civil Local Rule 7-1(b) and vacated the

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hearing scheduled for February 1, 2018. See ECF 24. For the reasons that follow, Defendant’s

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motion to dismiss the Complaint is DENIED.

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I.

BACKGROUND

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The following facts are taken from Plaintiffs’ Complaint and are accepted as true on a

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motion to dismiss. See ECF 1 (“Compl.”). Plaintiff Abdul Nevarez is a right leg above-the-knee

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amputee who requires use of a wheelchair for mobility. Compl. ¶ 8. Prior to his injury that

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rendered him disabled, Abdul Nevarez was an avid golfer and has continued to golf after his

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injury. Id. ¶ 2. Abdul’s wife, Priscilla Nevarez, is not disabled but accompanies her husband

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golfing and assists him with making golf arrangements. Id. ¶¶ 2, 8. Defendant is the owner and

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operator of Coyote Creek golf course. Id. ¶ 9.

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Plaintiffs allege that Defendant’s golf course is a public accommodation that is subject to

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the requirements of Title III of the ADA. Id. ¶ 12. Plaintiffs further allege that through its

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operation of Coyote Creek, Defendant has denied persons with mobility disabilities the full and

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equal enjoyment of its facilities. Id. ¶ 14. For example, on or about October 13, 2016, Priscilla

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Nevarez called Coyote Creek to book a tee time for herself and Abdul Nevarez. Id. ¶ 16. Priscilla

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spoke with Defendant’s employee, booked a tee time, and requested a ParaGolfer adaptive golf

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cart for Abdul to use. Id. The employee responded that Coyote Creek only has regular golf carts,

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not adaptive golf carts. Id. On March 21, 2017, Priscilla attempted to follow up with Defendant’s

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management via e-mail regarding Coyote Creek’s lack of golf carts for disabled players. Id. ¶ 17.

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Priscilla emailed an address listed on Defendant’s website, but the email as returned as

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undeliverable. Id.
Priscilla made several attempts to e-mail Defendant’s management at Coyote Creek

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regarding her husband’s access to the golf course but has not received any response. Id. ¶¶ 18, 19.

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United States District Court
Northern District of California

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Plaintiffs also refer to the existence of other barriers at Coyote Creek that violate the ADA but that

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Plaintiffs have not yet encountered because they are unable to play golf at Coyote Creek due to

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Abdul’s disability. Id. ¶¶ 20, 21.

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Plaintiffs filed this action against Defendant on May 31, 2017 alleging disability

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discrimination in violation of (1) Title III of the ADA; and (2) the Unruh Act. See Compl.

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Defendant timely moved to dismiss the Complaint. See generally Mot.

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II.

LEGAL STANDARD

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A motion to dismiss under Rule 12(b)(6) concerns what facts a plaintiff must plead on the

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face of the complaint. Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint

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must include “a short and plain statement of the claim showing that the pleader is entitled to

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relief.” Any complaint that does not meet this requirement can be dismissed pursuant to Rule

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12(b)(6). A “short and plain statement” demands that a plaintiff plead “enough facts to state a

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claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007),

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which requires that “the plaintiff plead factual content that allows the court to draw the reasonable

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inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,

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678 (2009). The Court must “accept factual allegations in the complaint as true and construe the

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pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire &

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Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).
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III.

REQUEST FOR JUDICIAL NOTICE

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The Court first addresses Defendant’s request for judicial notice in support of its motion to

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dismiss. See ECF 14 (“RJN”). Although a district court generally may not consider any material

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beyond the pleadings in ruling on a Rule 12(b)(6) motion, the Court may take judicial notice of

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documents referenced in the complaint, as well as matters in the public record, without converting

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a motion to dismiss into one for summary judgment. See Lee v. City of LA., 250 F.3d 668, 688-89

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(9th Cir. 2001), overruled on other grounds by Galbraith v. Cty. of Santa Clara, 307 F.3d 1119,

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1125-26 (9th Cir. 2002). In addition, the Court may take judicial notice of matters that are either

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“generally known within the trial court’s territorial jurisdiction” or “can be accurately and readily

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determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b).

United States District Court
Northern District of California

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Defendant requests that the Court take judicial notice of the “fact” that the ParaGolfer

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adaptive golf cart is a wheelchair. See RJN at 2. To authenticate this fact, Defendant requests

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judicial notice of screenshots from three websites demonstrating that the ParaGolfer is marketed to

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the public as a wheelchair, and is identified as a wheelchair by the manufacturer and sellers of the

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device. See RJN Exh. A-C. Defendant also requests judicial notice of a “510(k) Summary of

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Safety and Effectiveness” for the ParaGolfer that was submitted to the Food and Drug

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Administration (“FDA”) on August 7, 2006. RJN Exh. D. Defendant argues that these documents

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“definitively” settle the question of whether the ParaGolfer device is a wheelchair. See RJN at 3.

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Plaintiffs oppose Defendant’s request for judicial notice on the grounds that the websites

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cannot be authenticated and all of the documents lack probative value. See ECF 19 (“Obj. to

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RJN”). Plaintiffs have also filed two declarations in support of their objections. See ECF 20, 21.

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Because Exhibit D to Defendant’s RJN is a document available on the FDA’s website, the

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Court finds that it is a public record that is properly subject to judicial notice. See Daniels–Hall v.

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Nat’l Educ. Ass’n, 629 F.3d 992, 998–99 (9th Cir. 2010) (granting judicial notice of information

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contained on a government website); see also Nevarez v. Canyon Lakes Golf Course & Brewery

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LLC, No. 4:17-CV-03247-KAW, 2017 WL 5479649, at *3 (N.D. Cal. Nov. 15, 2017) (granting

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judicial notice of the same “510(k) Summary” submitted to the FDA that is at issue in this case).

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However, Defendant provides no support for the authenticity of the screenshots of websites
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submitted as Exhibits A through C, and the Court finds that their authenticity is not capable of

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accurate and ready determination by resort to sources whose accuracy cannot reasonably be

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questioned. See Fed. R. Evid. 201(b).

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Accordingly, the Court GRANTS Defendant’s request for judicial notice of Exhibit D, and

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DENIES the request to take judicial notice of Exhibits A, B, and C. With respect to Plaintiffs’

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supplemental declarations, the Court does not consider them but instead relies on the well-pled

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allegations in the Complaint.

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IV.

DISCUSSION

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Defendant moves to dismiss the Complaint on several grounds, which the Court addresses
in turn. As discussed below, the Court finds that many of Defendant’s arguments go beyond the

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United States District Court
Northern District of California

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pleadings in this case and require a factual record in order for the Court to determine whether

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Defendant’s denial of Plaintiffs’ request for a ParaGolfer constitutes a violation of the ADA or the

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Unruh Act.

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First, Defendant argues that it is not required to “alter its inventory” to include accessible

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or special goods for individuals with disabilities, such as the ParaGolfer. See Mot. at 4-5 (quoting

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28 C.F.R. § 36.307(a)). Plaintiffs respond that a golf cart is not a “good” within the meaning of

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§ 36.307(a), but rather it is part of the “facility.” See Opp’n at 5-6, ECF 18. Both parties cite to

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the Ninth Circuit’s decision in Karczewski v. DCH Mission Valley LLC, which held that the

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plaintiff had stated an ADA claim against a defendant car dealership that failed to provide hand

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controls for disabled patrons to test drive cars. 862 F.3d 1006, 1011 (9th Cir. 2017). The Ninth

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Circuit determined that the plaintiff had adequately alleged that temporarily installing hand

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controls was a reasonable modification necessary to accommodate patrons with disabilities. Id.

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The Ninth Circuit recognized the exception set forth in 28 C.F.R. § 36.307(b) to the

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general rule of subsection (a), which requires that a “public accommodation shall order accessible

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or special goods at the request of an individual with disabilities” in some circumstances. See

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Karczewski, 862 F.3d at 1014 (citing § 36.307(b)). Such circumstances include when accessible

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or special goods can be obtained for a supplier with whom the public accommodation customarily

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does business. § 36.307(b). In Nevarez v. Canyon Lakes Golf Course & Brewery LLC, a nearly
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identical case brought by the same Plaintiffs against a different golf course, the court rejected the

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defendant’s argument that it was not required to alter its inventory because “[w]hether obtaining

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such a golf cart is readily achievable…is not properly resolved at the pleadings stage.” No. 4:17-

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CV-03247-KAW, 2017 WL 5479649, at *3 (N.D. Cal. Nov. 15, 2017). Without a factual record,

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this Court cannot determine whether the circumstances of § 36.307(b) apply to the facts of this

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case, or whether the ParaGolfer is a “good” within the meaning of § 36.307(a).

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Taking the well-pled allegations in the Complaint as true, Plaintiffs have adequately

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alleged that Defendant violated the ADA by failing to make reasonable modifications in policies,

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practices, or procedures at Coyote Creek when these modifications were necessary to
accommodate persons with disabilities such as Abdul Nevarez. See Compl. ¶ 34; see also

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United States District Court
Northern District of California

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Karczewski, 862 F.3d at 1011 (“In sum, taking the allegations in the complaint as true, Plaintiff

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has stated a claim that Defendant discriminated against him by failing to make a reasonable

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modification to a policy, practice, or procedure.”) Moreover, it is reasonable to infer from

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Plaintiffs’ allegations that Defendant’s access to suppliers of regular golf carts meant that

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Defendant could also obtain adaptive golf carts such as the ParaGolfer. Compl. ¶ 16; accord

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Canyon Lakes, No. 4:17-CV-03247-KAW, 2017 WL 5479649, at *3 (N.D. Cal. Nov. 15, 2017).

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For the foregoing reasons, Defendant’s motion to dismiss the Complaint on the grounds that it is

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not required to alter its inventory is DENIED.

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Defendant next points to ADA Regulation § 36.306 which provides that a public

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accommodation is not required “to provide its customers, clients, or participants with personal

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devices, such as wheelchairs…” 28 C.F.R. § 36.306. Relying on its request for judicial notice,

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Defendant argues that the ParaGolfer is a wheelchair. See Mot. at 5; see also RJN. Plaintiffs

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oppose this argument by pointing to the Complaint which alleges that the ParaGolfer is an

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“adaptive golf cart,” and contains no allegation that the ParaGolfer is a wheelchair. See Opp’n at

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7; Compl. ¶ 16. Plaintiffs offer two declarations to counter Defendant’s argument that the

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ParaGolfer is a wheelchair, which the Court does not consider. See ECF 20, 21. The parties’

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dispute over whether an adaptive golf cart is a “wheelchair” or “personal device” within the

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meaning of § 36.306 clearly goes beyond the pleadings and is not properly resolved on a motion to
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dismiss. Accord Canyon Lakes, No. 4:17-CV-03247-KAW, 2017 WL 5479649, at *4 (N.D. Cal.

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Nov. 15, 2017) (“The determination of whether the ParaGolfer is a wheelchair requires evidence

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far beyond the pleadings, and must be decided on a motion for summary judgment.”)

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Accordingly, Defendant’s motion to dismiss the Complaint on the grounds that the ParaGolfer is a

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wheelchair is DENIED.
Turning to Plaintiffs’ second cause of action, Defendant argues that in order to establish a

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violation of the Unruh Act that is “independent of a claim under the ADA,” a plaintiff must plead

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intentional discrimination. See Mot. at 5. In opposition, Plaintiffs make clear that their Unruh Act

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claim is premised on the alleged ADA violation, which does not require a showing of intentional

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discrimination. See Opp’n at 8; see also Wilson v. Haria & Gogri Corp., 479 F. Supp. 2d 1127,

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United States District Court
Northern District of California

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1141 (E.D. Cal. 2007) (“In sum, the court concludes that a plaintiff may obtain damages under the

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Unruh Act for violations of the ADA even without a showing of intentional discrimination.”)

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Here, Defendant concedes that an ADA violation on its own constitutes a violation of the Unruh

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Act. See Mot. at 6 (citing Cal. Civ. Code 51(f)). Defendant’s arguments regarding Unruh Act

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claims “independent of” ADA claims are therefore inapplicable. Because the Court finds that

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Plaintiffs have adequately alleged a violation of the ADA, Defendant’s motion to dismiss the

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Unruh Act cause of action is DENIED.

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For the first time in its reply brief, Defendant raises an argument that Plaintiffs lack

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standing to pursue “speculative” ADA violations, because the pleading conclusively shows that

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Plaintiffs have not observed or been deterred by any other conditions, nor have they visited or

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tried to visit Coyote Creek golf course. See Reply at 6-8, ECF 22. The Court is not persuaded by

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Defendant’s standing argument, and indeed, “[t]he district court need not consider

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arguments raised for the first time in a reply brief.” Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir.

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2007). Moreover, the Court’s review of the Complaint indicates that the only barriers alleged by

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Plaintiffs are related to Defendant’s failure to (1) maintain a safe, adaptive golf cart in Coyote

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Creek’s golf cart fleet for use by disabled patrons; and (2) operate accessible tee time booking

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policies and procedures. See, e.g., Compl. ¶¶ 12, 16, 20, 38, 43, 47. Accordingly, the Court need

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not determine whether Plaintiffs have standing to pursue claims based on “speculative” ADA
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violations, because Plaintiffs have only adequately alleged the barriers that they actually observed

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and encountered.

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V.

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For the foregoing reasons, Defendant’s motion to dismiss the Complaint is DENIED.

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ORDER

Defendant shall file an Answer on or before March 5, 2018.

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IT IS SO ORDERED.

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United States District Court
Northern District of California

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Dated: February 12, 2018
______________________________________
BETH LABSON FREEMAN
United States District Judge

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