Johnson v. Hurwicz

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION [7] 8 SCOTT JOHNSON, Case No. 5:21-cv-02027-EJD 9 Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ADA CLAIM; 10 v. DECLINING SUPPLEMENTAL JURISDICTION OVER UNRUH ACT 11 PETER T. HURWICZ, et al., CLAIM 12 Defendants. Re: Dkt. No. 16 13 Plaintiff Scott Johnson (“Plaintiff”) initiated this suit against Defendants Peter T. Hurwicz 14 and Silicon Valley Auto Body, Inc. (“Defendants”), alleging violations of the Americans with 15 Disabilities Act (“ADA”) and California’s Unruh Act. Plaintiff alleges that Defendants failed to 16 provide wheelchair accessible parking. Pending before the Court is Defendants’ motion to dismiss 17 the action pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter 18 jurisdiction. Dkt. No. 16. Defendants contend that the ADA claim is moot based on the 19 undisputed declaration and report of a Certified Access Specialist (“CASp”), which indicate that 20 the alleged accessibility issues have been remedied. For the reasons stated below, the Court grants 21 Defendants’ motion to dismiss the ADA claim and declines to exercise supplemental jurisdiction 22 over the Unruh Act claim. 23 I. BACKGROUND 24 Plaintiff initiated this suit on March 24, 2021. Plaintiff alleges that Defendants fail to 25 provide wheelchair accessible parking at Defendants’ commercial auto body shop known as 26 Silicon Valley Auto Body & Tow, located at 327 E. Weddell Drive, Sunnyvale, California (the [27] Case No.: 5:21-cv-02027-EJD 1 “Facility”). The one and only barrier Plaintiff allegedly encountered is the lack of an access aisle 2 at the ADA-designated parking stall. Defendants were served on April 18, 2021. 3 Less than a month later, on May 3, 2021, Defendants engaged a CASp, Bassam Altwal, to 4 inspect the Facility and to prepare a CASp report. Altwal inspected the Facility and identified 5 various non-conforming features, including with the parking, exterior path of travel and front 6 entrance of the Facility. 7 On May 6, 2021, Defendants filed an answer. On May 15, 2021, and again on May 17, 8 2021, Defendants informed Plaintiff that all barriers to access alleged in the Complaint have been 9 removed. 10 On June 3, 2021, Altwal reinspected the facility and confirmed that (1) there is ADA 11 compliant signage on the exterior path of travel; (2) the direction of travel slope of the accessible 12 route is less than 5% (4.2%); (3) there are no abrupt vertical changes greater than ¼ inch on the 13 accessible route; and (4) the accessible parking and access aisle are compliant in length, width, 14 slope and striping. According to Altwal, the Facility’s parking and exterior path of travel now 15 meet the applicable ADA Standards for Accessible Design (“ADAS”) and California Building 16 Code (“CBC”) requirements. 17 Further, Altwal measured and inspected the front entrance of the Facility, including the 18 new concrete at the clear floor landing area, and found them to be compliant with both the ADAS 19 and CBC. The current landing is sloped at 1.1% (2% or less required) and the clear floor area on 20 the pull side of the door beyond the strike jamb exceeds 24” wide and 60” deep. The front door 21 pressure does not exceed 5 lbs. of pressure to operate and there is a code compliant kick plate on 22 the front door. According to Altwal, the Facility’s front entrance and front door meet the ADAS 23 and CBC requirements. Altwal’s findings are detailed in a 51-page report. On June 16, 2021, 24 Altwal issued a Certification of Compliance for the Facility. 25 On July 9, 2021, Defendants filed the instant motion to dismiss the ADA claim as moot. 26 Plaintiff filed an opposition on July 22, 2021, and Defendants filed a reply on July 30, 2021. [27] Case No.: 5:21-cv-02027-EJD 1 II. STANDARDS 2 A defendant may file a Rule 12(b)(1) motion to contest a plaintiff’s showing of subject 3 matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A defendant may either challenge jurisdiction 4 “factually” by presenting extrinsic evidence (affidavits, etc.) demonstrating the lack of jurisdiction 5 on the facts of the case or “facially” by arguing the complaint “on its face” lacks jurisdiction. 6 Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004); Safe Air for Everyone v. Meyer, 373 F.3d 7 1035, 1039 (9th Cir. 2004). 8 In general, when resolving a factual attack, the district court may review evidence beyond 9 the complaint without converting the motion to dismiss into one for summary judgment. Safe Air, 10 373 F.3d at 1039. No presumptive truthfulness attaches to the plaintiff’s allegations and the 11 existence of disputed material facts will not preclude the trial court from evaluating the merits of 12 jurisdictional claims. Gregory Vill. Partners, L.P. v. Chevron, U.S.A., Inc., 805 F. Supp. 2d 888 , 13 895 (N.D. Cal. 2011). “However, when the jurisdictional issue and the merits are ‘intertwined,’ or 14 when the jurisdictional question is dependent on the resolution of factual issues going to the 15 merits, the district court must apply the summary judgment standard in deciding the motion to 16 dismiss.” Miller v. Lifestyle Creations, Inc., 993 F.2d 883 (9th Cir. 1993) (quoting Augustine v. 17 United States, 704 F.2d 1074, 1077 (9th Cir. 1983)). “The question of jurisdiction and the merits 18 of an action are intertwined where a statute provides the basis for both the subject matter 19 jurisdiction of the federal court and the plaintiff’s substantive claim for relief.” Safe Air for 20 Everyone, 373 F.3d at 1039. 21 In this case, the question of whether there are violations of the ADA is determinative of 22 both subject matter jurisdiction and the substantive claim for relief. The Court will therefore treat 23 the motion to dismiss for mootness as a motion for summary judgment. Accord Johnson v. 24 Barrita, No. 18-06205 WHA, 2019 WL 931769 , at *2 (N.D. Cal. Feb. 26, 2019). [27] Case No.: 5:21-cv-02027-EJD 1 III. DISCUSSION 2 A. ADA Claim 3 Because a private plaintiff can sue only for injunctive relief under the ADA, a defendant’s 4 voluntary removal of alleged barriers prior to trial can have the effect of mooting a plaintiff’s 5 ADA claim. Oliver v. Ralphs Grocery Co., 654 F.3d 903, 905 (9th Cir. 2011); see, e.g., Johnson 6 v. Gallup & Whalen Santa Maria, No. 17-CV-01191-SI, 2018 WL 2183254 , at *4 (N.D. Cal. May 7 11, 2018) (“There can be no effective relief here, where defendants have already removed the 8 architectural barriers that plaintiff identified in the complaint.”). That is because a plaintiff only 9 has Article III standing for injunctive relief if he can “demonstrate a sufficient likelihood that he 10 will again be wronged in a similar way. That is, he must establish a real and immediate threat of 11 repeated injury.” Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004). The 12 threat of future injury dissipates if the barriers to accessibility have been remediated—particularly 13 where remediation required structural changes that are not reasonably likely to be undone. See 14 Johnson v. Holden, No. 18-01624 EJD, 2020 WL 1288404 , at *4 (N.D. Cal. Mar. 18, 2020); 15 Ramirez v. Golden Creme Donuts, No. 12-05656 LB, 2013 WL 6056660 , at *2 (N.D. Cal. Nov. 16 15, 2013); see generally Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 17 167, 190 (2000) (“[A] defendant claiming that its voluntary compliance moots a case bears the 18 formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not 19 reasonably be expected to recur.”). 20 Here, Defendants have presented evidence of their voluntary remediation of the alleged 21 barrier. Based on the evidence presented by Defendants, the Court is satisfied that the changes 22 made at the Facility are not mere temporary fixes. Plaintiff has not rebutted or otherwise objected 23 to the evidence submitted by Defendants. Nor has Plaintiff requested an opportunity to take 24 jurisdictional discovery. Therefore, the Court is not required to postpone Defendants’ motion. 25 Am. W. Airlines, Inc. v. GPA Grp., Ltd., 877 F.2d 793 , 801 (9th Cir. 1989) (finding that “the 26 district court did not abuse its discretion in deciding the jurisdictional issue without allowing [27] Case No.: 5:21-cv-02027-EJD 1 additional time for discovery” where the plaintiff neither moved to compel discovery nor 2 requested time to conduct such discovery). Applying the summary judgment standard, the Court 3 finds that the undisputed evidence submitted by Defendants establishes that the ADA claim is 4 moot. 5 Nevertheless, Plaintiff opposes Defendants’ motion on four grounds. First, Plaintiff argues 6 that Defendants’ Rule 12(b)(1) motion is untimely because an answer is already on file. Plaintiff’s 7 argument is frivolous. A Rule 12(b)(1) motion may be made at any time. Arbaugh v. Y&H Corp., [8] 546 U.S. 500, 506 (2006) (“The objection that a federal court lacks subject-matter jurisdiction, see 9 Fed. Rule Civ. Proc. 12(b)(1), may be raised by a party, or by a court on its own initiative, at any 10 stage in the litigation, even after trial and the entry of judgment.”). 11 Second, Plaintiff contends that he needs time to conduct a site inspection pursuant to 12 General Order 56 to determine if other barriers at the site exist. If other barriers are located, 13 Plaintiff intends to seek leave to amend his complaint to add all barriers. Again, Plaintiff’s 14 argument is frivolous. General Order 56 does not preclude a defendant from filing a motion to 15 dismiss for lack of subject matter jurisdiction. Johnson v. 1082 El Camino Real, No. 17-01391 16 EJD, 2018 WL 1091267 , at *2 (N.D. Cal. Feb. 28, 2018). Moreover, the deadline to conduct the 17 site inspection in this case expired in June of 2021 without Plaintiff ever seeking a court order 18 compelling the site inspection. Instead, Defendants filed an administrative motion to be relieved 19 from the General Order 56 requirements, which was granted as unopposed. 20 Plaintiff’s reliance on Whitaker v. Tesla Motors, Inc., 985 F.3d 1173 (9th Cir. 2021), is 21 misplaced. In Tesla, the issue before the Ninth Circuit was whether the plaintiff had sufficiently 22 alleged a cognizable ADA claim. The Tesla court held that the complaint was deficient and 23 rejected the plaintiff’s argument that he was entitled to conduct discovery to fill in the gaps left by 24 his complaint. Id. at 1177 . 25 Third, Plaintiff contends that it is unfair to convert Defendants’ motion to a summary 26 judgment motion because the case is in its earliest stages. The argument is unpersuasive. Plaintiff [27] Case No.: 5:21-cv-02027-EJD 1 has known since May 2021 that the alleged barriers may have been remedied. Apparently, 2 Plaintiff has made no attempt to determine whether the barriers have been removed, despite 3 having ample time to do so. 4 Lastly, Plaintiff asks the Court to exercise supplemental over the Unruh Act claim, even if 5 the federal ADA claim is dismissed. District courts “may”—and often do—“decline to exercise 6 supplemental jurisdiction” if, as here, they have “dismissed all claims over which it has original 7 jurisdiction.” See, e.g., Oliver, 654 F.3d at 911 (quoting 28 U.S.C. § 1367 (c)(3)); Yates v. Delano 8 Retail Partners, LLC, No. 10-3073 CW, 2012 WL 4944269 , at *3 (N.D. Cal. Oct. 17, 2012); R.K., 9 ex rel. T.K. v. Hayward Unified Sch. Dist., No. C 06-07836 JSW, 2008 WL 1847221 , at *2 (N.D. 10 Cal. Apr. 23, 2008). As the Supreme Court and the Ninth Circuit have “often repeated,” “in the 11 usual case in which all federal-law claims are eliminated before trial, the balance of factors will 12 point toward declining to exercise jurisdiction over the remaining state-law claims.” Acri v. 13 Varian Assoc., Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (quoting Carnegie–Mellon University v. 14 Cohill, 484 U.S. 343 , 350 n. 7 (1988) (alterations omitted)). 15 More recently, the Ninth Circuit considered whether a court should exercise supplemental 16 jurisdiction over an Unruh Act claim after granting the plaintiff summary judgment on the ADA 17 claim. See Arroyo v. Rojas, 19 F.4th 1202 (9th Cir. 2021). In Arroyo, the Ninth Circuit noted that 18 under the Unruh Act, the California legislature chose to “impose filing restrictions designed to 19 address [the concern that] high-frequency litigants may be using the statute to obtain monetary 20 relief for themselves without accompanying adjustments to locations to assure accessibility to 21 others.” Id. at 1211–12. These restrictions include requiring “high-frequency litigants” to pay an 22 additional $1,000 filing fee and disclose how many complaints they have filed in the last year, the 23 reason the plaintiff was in the geographic area of defendant’s business, and why plaintiff desired 24 to access the business. See id. at 1207–08. The apparent result of these restrictions has been the 25 shifting of Unruh Act/ADA cases into federal court. See id. at 1212 . The Ninth Circuit observed 26 that as a result of this shifting of cases into federal courts, the California Legislature’s goal of [27] Case No.: 5:21-cv-02027-EJD 1 “simultaneously providing damages relief for ADA violations while ‘limit[ing] the financial 2 burdens California’s businesses may face for statutory damages’” has been undermined. Id. at 3 1212–13. Thus, the Ninth Circuit instructed that district courts should consider “on a case-by-case 4 basis” whether to decline supplemental jurisdiction over Unruh Act claims. Id. at 1205 . 5 Plaintiff has not shown that this is other than the “usual case.” As the Court has not 6 considered the merits of the Unruh Act claim, there is no interest in judicial economy in retaining 7 the case. Nor has Plaintiff articulated any significant inconvenience that he would face in refiling 8 in state court. The Court will, therefore, decline to exercise supplemental jurisdiction over 9 Plaintiff’s Unruh Act and dismiss it without prejudice. 10 IV. CONCLUSION 11 Defendants’ motion to dismiss the ADA claim is GRANTED. The ADA claim is 12 dismissed as moot. The Court declines to exercise supplemental jurisdiction over the remaining 13 Unruh Act claim. Accordingly, the Unruh Act claim is dismissed without prejudice to refile the 14 claim in state court. [15] 16 IT IS SO ORDERED. 17 Dated: February __, 2022 [19] EDWARD J. DAVILA 20 United States District Judge [27] Case No.: 5:21-cv-02027-EJD