White v. Johnson

Filing 21

ORDER Setting Jurisdictional Hearing. Because briefing has not made the jurisdictional problem any clearer, the Court will hold a hearing on the issue. Counsel for both parties shall appear in person before the Court for a Hearing on 5/26/2017 11:00 AM before Judge Larry Alan Burns. Signed by Judge Larry Alan Burns on 5/10/2017.(lrf)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DOROTHY WHITE,

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CASE NO. 16cv2524-LAB (JMA)
Plaintiff,

ORDER SETTING JURISDICTIONAL
HEARING

vs.
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DIANE E. JOHNSON, TRUSTEE OF
THE DIANE E. JOHNSON TRUST
DATED JULY 25, 2013,
Defendant.

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Plaintiff Dorothy White filed her complaint in this case bringing claims under the
Americans with Disabilities Act and supplemental state claims.

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Her claims are premised solely on conditions in the parking lot at a shopping center

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in the city of Spring Valley. Specifically, the complaint alleges “White uses a mobility

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equipped van and manual wheelchair when traveling in public.” (Complaint, ¶ 8.) It says

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that when she visited the shopping center, she encountered barriers that prevented her from

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safely parking there. The complaint alleges that both disabled parking spaces and the

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associated access aisles have slopes and/or cross slopes that are too steep. “Without a

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level parking space, it is difficult for White to unload/transfer from a vehicle as her wheelchair

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rolls and/or a lift’s platform cannot sit level . . . .” (Compl., ¶ 10.) The complaint alleges that

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these barriers are denying her full and equal enjoyment of the shopping center’s facilities.

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16cv2524

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Although the complaint mentions the existence of other barriers, these are the only ones that

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are pled with any specificity and the only ones that form the basis for any claim.

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Defendant filed an ex parte motion seeking dismissal based on fraud on the Court. Among

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other things, Defendant noted that in a separate case filed in this District, White v. Papoutsis,

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16cv2694-JLS (DHB), counsel for the same law firm represented to the Court that Dorothy

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White “does not herself drive, and instead relies on friends or public transportation for her

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transportation needs . . . .”

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representation was made in 2011 in a brief opposing sanctions for White’s failure to appear

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at a court-scheduled conference.

(Docket no. 15 at 3:18–20, in case 16cv2694).

This

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Under the ADA, injunctive relief is the only relief available to private plaintiffs.

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Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 2011) (en banc). If a

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plaintiff lacks standing to pursue injunctive relief, the Court has no jurisdiction to entertain

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ADA claims. Id. And in this case, that would mean the Court has no jurisdiction over any

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of White’s claims. The Court is obliged to confirm its own jurisdiction, sua sponte if

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necessary, any time a doubt arises. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429

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U.S. 274, 278 (1977).

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The Court therefore ordered White’s counsel to file a declaration stating whether

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White drives, whether she owns a mobility equipped van, and how he knows these things

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to be true. Her attorney Scottlynn Hubbard filed a declaration (Docket no. 16-1) stating that

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White does not drive and does not have a driver’s license. Instead, he says, she relies on

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her husband to drive her in his car. When he is unavailable, she relies on friends or “third-

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parties (e.g., buses)” to drive her. Hubbard says one of White’s friends has a mobility

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equipped van, and it was that friend who drove her on the day she visited the shopping

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center. But other friends drive her in other vehicles, such as SUVs. “There is no set pattern

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to what vehicle she uses or when.” (Id., ¶ 3.)

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The declaration raises more questions than it answers. First, it contradicts the

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complaint, which leads a reasonable reader to believe that White always or routinely uses

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a mobility equipped van to travel in public. The complaint also implies that White must exit
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vehicles without assistance; thus, her wheelchair is in danger of rolling away as she is

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attempting to unload. But the declaration makes clear that White never travels alone, and

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only sometimes travels in a mobility equipped van. Instead, she either takes public

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transportation, or someone else drives her. When someone else drives her, it is sometimes

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in a car, SUV, or other vehicle.

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On days when White takes the bus, the condition of the handicapped parking spaces

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would seem to be a moot point, because public buses let passengers off at bus stops; they

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do not park in shopping center parking lots. On days when someone else drives her, she

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would be attended by at least one other person, which appears to alleviate any danger of

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her wheelchair rolling away. The problem of a mobility equipped van’s lift not sitting flat

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would only be a problem if White were being driven by her one friend who owns such a van.

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On all other days, this would not be a problem.

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Under Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992), a plaintiff must

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show that three elements are met in order to establish standing to sue. She must have

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suffered an injury in fact that is actual or imminent, not conjectural or hypothetical. Id. That

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injury must be fairly traceable to the defendant’s conduct. Id. And third, it must be likely, as

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opposed to merely speculative, that the injury will be redressed by a favorable decision. Id.

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Of particular concern here are the first and third elements. In Lujan, the Supreme

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Court held that the potential for the plaintiffs to suffer an injury at some indefinite future time

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was not enough to show that injury was imminent, in order to establish standing to seek

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injunctive relief. 504 U.S. at 565 n.2. Similarly, it is uncertain whether a favorable decision

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will benefit White in the future. With so many available arrangements open to her, the

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likelihood that she will visit the shopping center in a mobility-equipped van is unclear.

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The requirements for issuance of an injunction include a similar showing of imminent

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harm. A plaintiff seeking injunctive relief must establish a sufficient causal connection

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between the imminent irreparable harm and the conduct she seeks to enjoin such that the

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injunction would effectively curb the risk of injury. Fox Broad. Co., Inc. v. Dish Network LLC,

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747 F.3d 1060, 1072–73 (9th Cir. 2013).
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Because briefing has not made the jurisdictional problem any clearer, the Court will

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hold a hearing on the issue. Counsel for both parties shall appear in person before the

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Court on Friday, May 26, 2017 at 11:00 a.m. No additional briefing should be filed without

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leave. Plaintiff’s counsel should be prepared to give a short and clear explanation of why

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White has standing to seek injunctive relief, and why there is a sufficiently definite and

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imminent risk of harm if an injunction does not issue. While Defendant’s counsel will be

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given an opportunity to be heard, the parties should bear in mind that it is Plaintiff’s

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obligation to establish standing as appropriate at each stage of the case. See Lujan, 504

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U.S. at 561.

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IT IS SO ORDERED.
DATED: May 10, 2017

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HONORABLE LARRY ALAN BURNS
United States District Judge

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