Johnson v. Opa Campbell LP

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 SCOTT JOHNSON, Case No. 21-cv-01619-PJH 8 Plaintiff, 9 v. ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS 10 OPA CAMPBELL LP, et al., Dkt No. 20 11 Defendants. [13] 14 Before the court is defendants’ motion to dismiss for lack of subject matter 15 jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). The matter is fully 16 briefed and suitable for decision without oral argument. Accordingly, the hearing set for 17 August 12, 2021, is VACATED. Having read the parties’ papers and carefully considered 18 their arguments and the relevant legal authority, and good cause appearing, the court 19 hereby rules as follows. 20 I. Background 21 As alleged in the complaint, “Plaintiff is a level C-5 quadriplegic. He cannot walk 22 and also has significant manual dexterity impairments.” Compl. (Dkt. 1) at ¶ 1. 23 Defendants Opa Management Group, Inc., and Opa Campbell, LP, own and operate the 24 restaurant “Opa!” located at 276 E. Campbell Avenue, Campbell, California. 25 Plaintiff visited defendants’ restaurant sometime in November 2020 during the 26 Covid-19 pandemic. Compl. at ¶ 8. He encountered physical barriers in the form of 27 dining surfaces that were inaccessible to persons using wheelchairs. Compl. at ¶ 10. 1 for persons using wheelchairs. Compl. at ¶ 12. According to the complaint, “The barriers 2 identified above are easily removed without much difficulty or expense.” Compl. at ¶ 19. 3 Following the initiation of this lawsuit, defendants sought to cure the alleged 4 deficiencies identified by plaintiff. On April 12, less than a week after the filing of the 5 complaint, defendants hired Certified Access Specialist Bassam Altwal to conduct an 6 inspection at the restaurant. Dkt. 20 at ¶ 3, see also Dkt. 20-1. Altwal prepared a report 7 that identified various features of the indoor and outdoor dining tables that did not comply 8 with the 2010 ADA Standards for Accessible Design (“ADAS”) and the 2013 California 9 Building Code (“CBC”). Dkt. 20-1 at ¶ 8, Dkt. 20-2 at ¶ 5. 10 “Defendants removed the barrier to access alleged by Plaintiff by providing code11 compliant accessible seating within 30 days of being served with Plaintiff’s Complaint.” 12 Dkt. 20 at ¶ 4 (citing Olson Decl. at ¶ 6). “On May 17, 2021, Defendants informed 13 Plaintiff that “all barriers to access alleged in the complaint have been removed.” Dkt. 20 14 at ¶ 4 (citing Olson Decl. at ¶ 7). 15 On June 8, 2021, Altwal re-inspected the restaurant seating. Dkt. 20-1 at ¶ 9. He 16 confirmed that the dining surfaces were compliant with both the ADAS and the CBC 17 based on objective measurements. Dkt. 20-1 at ¶¶ 10-13. 18 Procedural History 19 The complaint in this action was filed March 8, 2021. Dkt. 1. It alleges (1) a 20 violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12182 (a), Compl. ¶¶ 21 22-28, and (2) a violation of the Unruh Civil Rights Act (“Unruh Act”), Cal. Civ. Code §§ 22 51-53, Compl. ¶¶ 29-33. As to the ADA claim, plaintiff requests injunctive relief—the only 23 form of relief the ADA affords private plaintiffs. Compl. at 7; Oliver v. Ralphs Grocery 24 Co., 654 F.3d 903, 905 (9th Cir. 2011); 42 U.S.C. § 12188 (a). Plaintiff also seeks an 25 unspecified amount of statutory damages under the California’s Unruh Civil Rights Act. 26 Compl. at 7; Cal. Civ. Code § 52 . 27 Defendants answered the complaint on April 6, 2021. Dkt. 13. The parties 1 granted the stipulation on June 23, 2021. Dkt. 19. 2 II. Discussion 3 On July 1, 2021, defendants filed the instant motion to dismiss the entire complaint 4 pursuant to Federal Rule of Civil Procedure 12(b)(1). Dkt. 20. Defendants move for 5 dismissal of plaintiff’s ADA claim (Cause of Action 1) as moot. See Oliver, 654 F.3d at 6 905 (“Because a private plaintiff can sue only for injunctive relief . . ., a defendant’s 7 voluntary removal of alleged barriers prior to trial can have the effect of mooting a 8 plaintiff’s ADA claim”). Dkt. 20 at 6-7. Defendants then ask the court to decline 9 supplemental jurisdiction over the Unruh Act claim (Cause of Action 2), a California state 10 law claim. Dkt. 20 at 7-8. 11 A. Legal Standard 12 The court has an ongoing obligation to ensure that it has subject matter jurisdiction 13 such that “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the 14 court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). Federal courts are limited by the 15 Constitution and Congress to only adjudicate cases involving diversity of citizenship or a 16 federal question, or those to which the United States is a party. Mims v. Arrow Fin. 17 Servs., LLC, 565 U.S. 368 , 376-77 (2012); see also Chen-Cheng Wang ex rel. United 18 States v. FMC Corp., 975 F.2d 1412, 1415 (9th Cir. 1992) (“Federal courts have no 19 power to consider claims for which they lack subject matter jurisdiction.”). Rule 12(b)(1) 20 of the Federal Rules of Civil Procedure also allows a defendant to raise the defense of 21 lack of subject matter jurisdiction by motion. The plaintiff bears the burden of establishing 22 subject matter jurisdiction. Kokkonen v. Guardian Life Ins., 511 U.S. 375, 377 (1994). 23 A challenge to subject matter jurisdiction may be facial or factual. Safe Air for 24 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Where the attack is facial, the 25 court determines whether the allegations contained in the complaint are sufficient on their 26 face to invoke federal jurisdiction, accepting all material allegations in the complaint as 27 true and construing them in favor of the party asserting jurisdiction. Id. at 1039 ; Warth v. 1 not presume the truthfulness of the plaintiff's allegations,” and may review extrinsic 2 evidence beyond the complaint without converting a motion to dismiss into one for 3 summary judgment. Safe Air for Everyone, 373 F.3d at 1039 . Once the moving party 4 has made a factual challenge by offering affidavits or other evidence to dispute the 5 allegations in the complaint, the party opposing the motion must “present affidavits or any 6 other evidence necessary to satisfy its burden of establishing that the court, in fact, 7 possesses subject matter jurisdiction.” St. Clair v. City of Chico, 880 F.2d 199, 201 (9th 8 Cir. 1989); see also Savage v. Glendale Union High Sch. Dist. No. 205, 343 F.3d 1036 , 9 1040 n.2 (9th Cir. 2003). 10 B. Analysis 11 There are only two issues of discussion: (1) whether the ADA claim should be 12 dismissed as moot and (2) whether, after concluding the ADA claim is moot, the court 13 should retain jurisdiction over the state Unruh Act claim. 14 1. Mootness of Americans with Disabilities Act Claim 15 Because injunctive relief is the only relief available to private ADA plaintiffs, a 16 plaintiff alleging ADA violations must establish standing to pursue injunctive relief. 17 “Standing for injunctive relief requires a plaintiff to establish a ‘real and immediate threat 18 of repeated injury.’” Strojnik v. IA Lodging Napa First LLC, No. 19-CV-03983-DMR, 2020 19 WL 2838814 , at *5 (N.D. Cal. June 1, 2020) (quoting Fortyune v. Am. Multi-Cinema, Inc., [20] 364 F.3d 1075, 1081 (9th Cir. 2004)). Ninth Circuit case law establishes that an ADA 21 plaintiff may establish standing “either by demonstrating deterrence, or by demonstrating 22 injury-in-fact coupled with an intent to return to a noncompliant facility.” Chapman v. Pier 23 1 Imports (U.S.) Inc., 631 F.3d 939, 944 (9th Cir. 2011). 24 A claim may become moot if (1) subsequent events have made it clear that the 25 allegedly wrongful behavior cannot reasonably be expected to recur, and (2) interim relief 26 or events have completely and irrevocably eradicated the effects of the alleged violation. 27 Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260 , 1274 (9th Cir. 1998) 1 Lindquist v. Idaho State Bd. Of Corrections, 776 F.2d 851, 854 (9th Cir. 1985)). In the 2 context of a complaint brought under the ADA, “because a private plaintiff can sue only 3 for injunctive relief (i.e., for removal of the barrier) under the ADA, a defendant’s voluntary 4 removal of alleged barriers prior to trial can have the effect of mooting a plaintiff's ADA 5 claim.” Oliver, 654 F.3d at 905 ; see also Johnson v. Oishi, 362 F. Supp. 3d 843 , 848 6 (E.D. Cal. 2019) (“[D]efendant’s voluntary cessation of an ADA violation may effectively 7 moot a plaintiff’s ADA claim”). 8 In assessing the applicability of the “voluntary cessation” doctrine in ADA cases, 9 “[c]ourts have held that where structural modifications are made, then it is absolutely 10 clear the allegedly wrongful behavior could not reasonably be expected to occur in the 11 future since structural modification[s] undo the offending conduct.” Zaldivar v. City of San 12 Diego, 2016 WL 5118534 , at *10 (S.D. Cal. Sept. 21, 2016). “When considering non13 structural features, on the other hand, courts have found that ‘voluntary remediation of’ 14 these violations do ‘not moot an issue’ because the violations ‘could easily reoccur.’” 15 Moore v. Saniefar, No. 1:14-CV-01067-SKO, 2017 WL 1179407 , at *6 (E.D. Cal. Mar. 29, 16 2017) (quoting Zaldivar, 2016 WL 5118534 , at *10). Nonetheless, “[i]n making a 17 determination about whether the facts indicate a danger of future violations . . . , [courts] 18 consider[ ] the bona fides of the expressed intent to comply, the effectiveness of the 19 discontinuance and, in some cases, the character of the past violations.” Watanabe v. 20 Home Depot USA, Inc., 2003 WL 24272650 , at *4 (C.D. Cal. July 14, 2003) (citation 21 omitted). 22 Importantly, defendant must establish those facts under the summary judgment 23 standard. See Fed. R. Civ. P. 56 (“The court shall grant summary judgment if the movant 24 shows that there is no genuine dispute as to any material fact and the movant is entitled 25 to judgment as a matter of law.”). Because defendant bears the burden of establishing 26 mootness, see In re Pintlar Corp., 124 F.3d 1310 , 1312 (9th Cir. 1997), it must 27 “affirmatively demonstrate” that there is no genuine dispute that the relevant accessibility 1 2007). The court must view the evidence in the light most favorable to plaintiff and draw 2 all reasonable inferences in plaintiff’s favor. Weil v. Citizens Telecom Servs. Co., LLC, [3] 922 F.3d 993, 1002 (9th Cir. 2019). 4 Here, defendants’ expert certifies that the barriers faced by plaintiff, namely, the 5 inaccessible table clearances, have been remedied. According to Altwal’s inspection 6 dated June 8, 2021, the vertical clear knee space, the horizonal clear knee space, the 7 unobstructed depth, and the surface height of the accessible tables each meets ADAS 8 and CBC requirements. Altwal Decl. (Dkt. 20-1) ¶¶ 10-12. This shows that the effects of 9 the violation have been eradicated. Plaintiff offers no contrary evidence to give rise to a 10 factual dispute. 11 Plaintiff cites to Doran v. 7-11, 524 F.3d 1034, 1042 (9th Cir. 2008), for the 12 premise that once a plaintiff encounters one barrier at a site, he can sue to have all 13 barriers that relate to his disability removed regardless of whether he personally 14 encountered them. However, the panel in Doran did not require a defendant to wait for a 15 plaintiff’s inspection before acting to fix barriers to accessibility. Entities such as 16 defendants here should be encouraged to quickly remedy accessibility barriers and bring 17 them into compliance with the ADA, and the potential mooting of a lawsuit is a valid 18 incentive to meet such standards. Plaintiff’s failure to offer competent evidence showing 19 that additional accessibility barriers remain leaves his ADA claim without support. 20 Further, based on the evidence of defendants’ remediations, the ADA violations 21 are not reasonably likely to recur. Defendants took affirmative steps to become 22 compliant and prevent future violations. Defendants quickly hired an experienced 23 Certified Access Specialist to review the restaurant within days of initiation of this lawsuit. 24 Defendants installed accessible dining tables. Defendants’ remediation was promptly 25 made after they received notice of the specific barriers at issue. Defendants’ briefing and 26 evidence indicates that they never intended to discriminate against persons with 27 disabilities. There is no indication in the record that defendants have any history of ADA 1 not aware of the alleged violations prior to the initiation of this suit. In short, any 2 conclusion that defendants would take action to remove the table or otherwise cause 3 their dining surfaces to fall into ADA noncompliance would be pure speculation. For 4 these reasons, defendants’ violations are not reasonably likely to recur, and the voluntary 5 cessation doctrine does not apply to avoid a determination that the plaintiff’s ADA claim is 6 moot. Therefore, defendants’ remediations moot plaintiff’s ADA claim. 7 2. Supplemental Jurisdiction over Unruh Act Claim 8 Plaintiff’s Unruh Act claim remains live even after cure of the alleged barriers 9 “[b]ecause a claim for damages under the Unruh Act looks to past harm.” Arroyo v. 10 Aldabashi, No. 16-CV-06181-JCS, 2018 WL 4961637 , at *5 (N.D. Cal. Oct. 15, 2018). As 11 a state law claim, though, it is only before this court pursuant to the court’s supplemental 12 jurisdiction. See 28 U.S.C. § 1367 (a). Such jurisdiction is discretionary. Acri v. Varian 13 Assocs., Inc., 114 F.3d 999, 1001 (9th Cir. 1997), supplemented, 121 F.3d 714 (9th Cir. 14 1997). 15 “District courts ‘may’—and often do—‘decline to exercise supplemental jurisdiction’ 16 if, as here, they have ‘dismissed all claims over which it has original jurisdiction.’” 17 Johnson v. Montpelier One LLC, No. 19-CV-06214-EJD, 2020 WL 3504458 , at *3 (N.D. 18 Cal. June 28, 2020) (citing 28 U.S.C § 1367(c)(3)). As the Supreme Court and the Ninth 19 Circuit have “often repeated,” “in the usual case in which all federal-law claims are 20 eliminated before trial, the balance of factors will point toward declining to exercise 21 jurisdiction over the remaining state-law claims.” Acri, 114 F.3d at 1001 (quoting 22 Carnegie-Mellon University v. Cohill, 484 U.S. 343 , 350 n.7 (1988) (alterations omitted)). 23 Defendant asks the court to decline to exercise jurisdiction over the Unruh Act 24 claim. Dkt. 20 at 7-8. Plaintiff has not shown that this is other than the “usual case.” 25 Unlike the years-long status of the cases cited by plaintiff encouraging the court to keep 26 state law claims following dismissal of federal claims, the court has not considered the 27 merits of the Unruh Act claim, and there is no interest in judicial economy in retaining the 1 refiling in state court. The court therefore declines to exercise supplemental jurisdiction 2 over plaintiff’s Unruh Act claim. 3 III. Conclusion 4 For the reasons set forth above, the court DISMISSES AS MOOT plaintiff’s ADA 5 claim and DISMISSES his state law claims without prejudice for refiling in state court. 6 IT IS SO ORDERED. 7 Dated: August 9, 2021 8 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 9 United States District Judge