Whitaker v. Peet's Coffee, Inc.

[5] 6 UNITED STATES DISTRICT COURT [7] NORTHERN DISTRICT OF CALIFORNIA [9] 10 BRIAN WHITAKER, 11 Plaintiff, No. C 21-07055 WHA 12 v. 13 PEET’S COFFEE, INC., ORDER GRANTING MOTION TO DISMISS 14 Defendant. [15] 16 INTRODUCTION 17 In this action under Title III of the Americans with Disabilities Act, defendant moves to 18 dismiss for lack of subject-matter jurisdiction under FCRP 12(b)(1). For the reasons that 19 follow, the motion is GRANTED. 20 STATEMENT 21 Plaintiff is a quadriplegic and uses a wheelchair (Compl. ¶ 1). In August 2021, plaintiff 22 visited Peet’s Coffee in Burlingame, California, to test its compliance with disability access law 23 (id. ¶ 8). Plaintiff alleges he encountered inaccessible outdoor dining surfaces during his visit 24 (id. ¶ 10–14). He further alleges that he will return to Peet’s Coffee once it is in compliance 25 with disability access law but he is currently deterred from doing so (id. ¶ 20). 26 Plaintiff has submitted a declaration and a prior order permitted a single deposition (Dkt. 27 Nos. 16, 19). This order follows full briefing, limited discovery, oral argument, and 1 ANALYSIS 2 A motion under FRCP 12(b)(1) contends that the district court lacks subject-matter 3 jurisdiction over the case. [4] A Rule 12(b)(1) jurisdictional attack may be facial or factual. In a 5 facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal 6 jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would 7 otherwise invoke federal jurisdiction. 8 Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citations omitted). 9 Defendant mounts a factual challenge. To resolve a factual challenge, the district court “need 10 not presume the truthfulness of the plaintiff’s allegations.” Ibid. (citation omitted). Instead, the 11 district court “may review evidence beyond the complaint without converting the motion to 12 dismiss into a motion for summary judgment.” Ibid. (citations omitted). 13 1. PLAINTIFF HAS FAILED TO ESTABLISH STANDING. 14 To establish standing, an ADA plaintiff must show a “real and immediate threat of 15 repeated injury.” Ervine v. Desert View Reg'l Med. Ctr. Holdings, LLC, 753 F.3d 862 , 867–68 16 (9th Cir. 2014) (citation omitted). “An ADA plaintiff establishes such a real and immediate 17 threat if he intends to return to a noncompliant place of public accommodation where he will 18 likely suffer repeated injury.” Ibid. (citation omitted). However, our court of appeals does not 19 require an ADA plaintiff to “engage in the ‘futile gesture’ of attempting to gain access in order 20 to show actual injury.” Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1135 (9th Cir. 21 2002). Instead, the injury element of the Article III standing analysis “can be satisfied in ADA 22 cases by showing that the plaintiff was deterred from attempting to visit a location or use a 23 service because of alleged ADA noncompliance.” Namisnak v. Uber Techs., Inc., 971 F.3d 24 1088, 1092 (9th Cir. 2020); see also CREEC v. Hospitality Properties, 867 F.3d 1093 (9th Cir. 25 2017) (naming this rule the “deterrent effect doctrine”). Moreover, [26] where . . . the public accommodation being sued is far from the 27 plaintiff’s home, we have found actual or imminent injury located and a desire to visit the accommodation if it were made 1 accessible. 2 D’Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 1037 (9th Cir. 2008). The so-called 3 Harris factors, which defendant urges that we follow, do not bear on our analysis. See Harris v. 4 Del Taco, Inc., 396 F. Supp. 2d 1107, 1113 (C.D. Cal. 2005). 5 Plaintiff lives over 360 miles away from Peet’s Coffee and relies on the deterrent effect 6 doctrine to allege standing (see Compl. ¶ 20; Opp. at 4–5; Whitaker Dep. at 11; RJN, Dkt. No. 7 15, Ex. A-2). Thus, to show imminent injury, plaintiff must demonstrate both an intent to return 8 to the Burlingame area and a desire to visit Peet’s Coffee if it were made accessible. See D’Lil, [9] 538 F.3d at 1037 . 10 Three decisions by our court of appeals illustrate what is sufficient to establish standing 11 under the deterrent effect doctrine where the plaintiff lives far away from the alleged 12 noncompliant facility. In Doran v. 7-Eleven, Inc., 524 F. 3d 1034 (9th Cir. 2008), the plaintiff 13 established that he was deterred from returning to a 7-Eleven that was 550 miles from his home. [14] Id. at 1041 . The plaintiff had visited the 7-Eleven ten to twenty times in the past, the 7-Eleven 15 was located near his favorite restaurant in the area, and he intended to go to the area during his 16 annual Disneyland trips. Ibid. Similarly, in D’Lil, the plaintiff, who lived in Sacramento, 17 successfully pleaded her intent to return to the Santa Barbara area and desire to stay at a specific 18 Santa Barbara hotel. Her declarations and testimony at an evidentiary hearing showed that she 19 had visited Santa Barbara one to three times a year, had three specific planned upcoming trips to 20 Santa Barbara, and had specific reasons related to the “hotel’s style, price, and location” for 21 wanting to stay at that particular hotel. 538 F.3d at 1037–39. In Pickern v. Holiday Quality 22 Foods, Inc., 293 F.3d 1133 (9th Cir. 2002), the plaintiff adequately alleged that he was deterred 23 from visiting a grocery store located seventy miles from his home where he stated in his 24 declaration that it was his favorite grocery store and that he visited the area every week to see 25 his grandmother. Id. at 1035. 26 Here, in contrast, plaintiff has not alleged or stated any specific connection to Burlingame, 27 any specific plan to return to Burlingame, or any specific reason to return to Peet’s Coffee in 1 California (Bay Area primarily) approximately twice a month for leisure and to look for areas to 2 live” and he had a specific plan to “come to the Bay Area . . . on July 29, 2021” (Decl. ¶ 7). 3 But July 2021 had passed before plaintiff even filed his declaration and, indeed, before his first 4 visit to Peet’s Coffee in August 2021. Moreover, in his deposition, plaintiff stated that he was 5 not certain that he had ever visited Burlingame before his August 2021 visit and admitted that 6 he had no “specific date in mind” to return to Burlingame in the future (Whitaker Dep. at 16, 7 56.) His prior assertion that he was looking for places to live near Burlingame also no longer 8 supports his standing argument. He admitted in his deposition that he intends to move to 9 Sacramento around October 2022 (id. at 13, 60–61). 10 Plaintiff further admitted at his deposition that he has no family or friends in Burlingame 11 or any other specific connection to the Burlingame area (id. at 24–25). His only asserted reason 12 for returning to Burlingame is that it is a “very beautiful place” where he “would like to visit 13 and shop at in the future” (id. at 57–58). His only asserted reason for returning to visit Peet’s 14 Coffee is that he “enjoys their hot chocolate” (id. at 31). These vague, unsupported assertions 15 are insufficient to establish a real and immediate threat of repeated injury. See Ervine, 753 F.3d 16 at 867–68 (9th Cir. 2014). 17 This order rejects plaintiff’s contention that our court of appeals lowered the standard for 18 what plaintiffs must allege to show standing under the deterrence theory in CREEC, 867 F.3d 19 1093 . There, our court of appeals held that plaintiffs had established standing by alleging they 20 “intend to visit the relevant hotels, but have been deterred from doing so by the hotels’ 21 noncompliance with the ADA” and “will visit the hotels when the non-compliance is cured.” 22 Id. at 1099. However, the decision also noted that “[m]aking case-by-case determinations about 23 whether a particular plaintiff’s injury is imminent is well within the competency of the district 24 courts” and cited with approval a decision from the Court of Appeals for the Eleventh Circuit 25 that considered “prior visits, proximity of residence to store, plans for future visits, and status as 26 an ADA tester.” Id. at 1099 (citing Houston v. Marod Supermarkets, Inc., 733 F.3d 1323 , 27 1335–37 (11th Cir. 2013)). As stated above, plaintiff is an ADA tester who lives far away from 1 the future. CREEC does not require this order to accept plaintiff's conclusory allegations of 2 imminent injury. 3 Plaintiff's ADA claim is accordingly DISMISSED. 4 2. THE UNRUH ACT CLAIM. 5 The complaint also asserts a state-law claim under California's Unruh Civil Rights Act, 6 California Civil Code § 51. Because this order dismisses plaintiff's federal claim for lack of 7 subject-matter jurisdiction, dismissal of the supplemental state-law claim is mandatory, not 8 discretionary. Herman Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 806 (9th Cir. 9 2001). 10 CONCLUSION 11 For the foregoing reasons, this case is DISMISSED. Leave to amend would be futile and so 12 this case is ready for appeal. The clerk shall CLOSE THE FILE. IT IS SO ORDERED. a 16 || Dated: March 31, 2022. Pee (AD Tee WILLIAM ALSUP 4 18 UNITED STATES DISTRICT 19 JUDGE